Petillo v. Stein

• Decision Date: 16 May 1945
• Docket Number: 38.
• Parties: PETILLO v. STEIN et al.
• Court: Maryland Court of Appeals

42 A.2d 675

184 Md. 644

PETILLO v. STEIN et al.

No. 38.

Court of Appeals of Maryland

May 16, 1945

Appeal from Baltimore Court of Common Pleas; J. Craig McLanahan Judge.

Proceeding under the Workmen's Compensation Act by Miche Petillo claimant, opposed by Emma Stein, trading as Northeastern Chemical Company, employer, and American Mutual Liability Insurance Company, insurer. From an award of the State Industrial Accident Commission granting compensation for permanent partial disability, all parties appealed to the court of common pleas, which granted motion of employer and insurer to dismiss claimant's appeal and enter judgment for defendants thereon, and from such judgment claimant appeals.

Reversed.

Edwin S. Panetti, of Baltimore, for appellant.

Roszel C. Thomsen, of Baltimore (Clark, Thomsan & Smith, of Baltimore, on the brief), for appellees.

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

MARBURY Chief Judge.

The appellant (claimant) in this case was awarded compensation by the State Industrial Accident Commission on February 10, 1944, for permanent partial disability at the rate of $18 per week for 212 weeks, making a total award of $3,816. At the hearing before the Commission he claimed that he was permanently totally disabled. The appellees (employer and insurer) claimed that he was permanently partially disabled to a lesser extent than would justify the maximum award which he was given. Claimant appealed on March 3, 1944, and the employer and the insurer appealed on March 9, 1944. On April 6, 1944, the attorney for claimant filed a petition for an attorney's fee and on May 8, 1944 he was allowed the sum of $600 to be paid in a lump sum by commutation of 36 weekly payments at a discount of 3% by an order of the Commission. In another order passed on the same day, the Commission ordered that compensation for 96 weeks be commuted at a discount of 3% and paid in a lump sum, and that this lump sum of $1,585.61 be paid to the claimant. On June 10, 1944, the Commission ordered a payment to the claimant's physician of $200 converted from the final weeks of compensation, and on August 23, 1944, another order was passed by the Commission commuting 14 5/6 weeks to $253.50 to be paid claimant in a lump sum. On August 8, 1944, prior to the passage of the last commutation order, the employer and the insurer filed a motion in the Court of Common Pleas of Baltimore City, where the appeals were pending, to dismiss claimant's appeal because of the two commutations provided by the orders of the Commission of May 8, 1944. It is stated in the motion, and admitted, that the employer and the insurer complied with the orders by paying the lump sums, and did not appeal therefrom. It does not appear in the record that any objection was made before the Commission to the passage of these orders, or that any application was made to the Commission to withhold action until the appeal was heard, but the appellees contend that the claimant, having asked for and received these lump sum payments, is now estopped from prosecuting his appeal. On September 19, 1944, the Court of Common Pleas of Baltimore City granted the motion of appellees to dismiss claimant's appeal, and entered 'judgment for defendants, dismissing appeal'. From this judgment, an appeal was taken here.

Under the four orders of commutation, without considering the discount, there were paid the equivalent of weekly payments amounting to $648, $1,728, $200 and $253.50, or a total of $2,829.50, leaving a balance under the original award of $986.50, much of which has already been paid to the appellant in weekly instalments. If the appellees should be successful on their appeal in establishing that the permanent partial disability is less than that found by the Commission, not only the balance may be wiped out, but the award may be cut down to much less than the amount already paid. On the other hand, if appellant's appeal is permitted, and his claim that he is permanently totally disabled is upheld, he may receive as much a $6,000. The accident occurred on November 4, 1942, prior to the passage of Chapter 126 of the Acts of 1943, which raised this amount to $7,500. Code Article 101, Section 48.

Section 63 of Article 101, Flack's Annotated Code, provides 'In every case providing for compensation to an employee or his dependent, excepting temporary disability, the Commission may, if in its opinion the facts and circumstances of the case warrant it, convert the compensation to be paid in a partial or total lump sum.' This section (then Section 51) was construed by this court in the case of Victory Fireworks, etc., Co. v. Saxton, 170 Md. 446, 185 A. 123. It was there held that the legislative intent embodied therein was as stated by the Legislature, but that the action of the Commission under this section was subject to the provisions respecting appeals under Section 70 (then Section 56. See also Howard Contracting Co. v. Yaeger, Md., 41 A.2d 494.

One of the provisions respecting appeals, found in Section 70 of Article 101, is that an appeal shall not be a stay. This was considered by this court in the case of Branch v. Indemnity Insurance Co., 156 Md. 482, 144 A. 696. The employer and the insurer had appealed to court from an award made against them by the Commission. Pending hearing of their appeal, they had not paid the weekly compensation allowed. As the Commission had no power to enforce its own awards (Mattare v. Cunningham, 148 Md. 309, 129 A. 654), the claimant brought suit against the insurer. Thereupon the latter filed a bill in equity to restrain the prosecution of that suit until the termination of its appeal. Its contention was that the provision that an appeal should not be a stay was unconstitutional, because it deprived an appellant of what it was claimed was a constitutional right of trial by jury. This court held that there was no such constitutional right, that the right of trial by jury given was statutory, and that the legislature could properly impose conditions forbidding a stay upon such a statutory right. Such authority in the Legislature could not be denied consistently with the principle upon which the general validity of the Workmen's Compensation Act had been adjudicated. 'Its design was to insure speedy, as well as certain, relief in proper cases within the scope of its application. That humanitarian policy would be seriously hampered if the weekly payments of compensation awarded by the commission could be suspended because of an appeal. In providing that an appeal should not be a stay, the statute was simply adopting a necessary expedient to accomplish one of the important purposes for which it was enacted.' [156 Md. 482, 144 A. 698.]

The Branch case involved only the stay of weekly payments. Failure to get a stay of converted lump sum payments, especially if they consume the whole of the award, may raise other questions under some conditions. We are concerned here, however, only with statutory provisions. No question arises of judicial relief where substantial fundamental rights are violated by arbitrary or unreasonably administrative action without adequate statutory remedy. Baltimore v. Bloecher & Schaaf, 149 Md. 648, page 661, 132 A. 160; Petrushansky v. State, 182 Md. 164, 32 A.2d 696; Dal Maso v. Commissioners, 182 Md. 200, 34 A.2d 464, cf. Hecht v. Cook, Md., 40 A.2d 673. The Legislature did not not be a stay, and we cannot attach any conditions to it. We must hold, following our previous decisions, that it applies to all appeals including those from converted or commuted awards. State Accident Fund v. Jacobs' Adm'r, 140 Md. 622, page 633, 118 A. 159, 24 A.L.R. 434; Paul v. Glidden Co., Md., 39 A.2d 544; Howard Contracting Co. v. Yaeger, supra.

The remedy asked by appellees is unrelated to their damages. They contend that appellant is estopped from prosecuting his own appeal because he accepted payment of the lump sum awards and thereby prevented them from getting any of the practical benefit which might result, were their contentions sustained on appeal. In the case of Bethlehem Steel Co. v. Mayo, 168 Md. 410, 177 A. 910, 911, the claimant had been awarded permanent partial disability occasioned by a fifty per cent loss of use of his left leg. The claimant appealed from that award. Pending the appeal, the employer paid and the claimant accepted compensation. The employer moved to dismiss claimant's appeal on the ground that, by accepting such payments, he waived the right of appeal. After that motion was overruled, the case was tried and the jury found the claimant had suffered 100% loss of use of his leg. On that verdict judgment was entered to reverse the order of the Commission, and to increase the permanent partial disability from 50% to 100%. An appeal was taken from that judgment. The first question presented was whether the appeal should have been dismissed. This court agreed with the trial court, saying 'The general rule is that one cannot at the same time accept the benefits accruing to him under a judgment, order, or decree, and attack its validity by appealing therefrom, unless the right to appeal under such circumstances is given by statute * * * but that rule does not apply where the right to the benefit received is conceded by the opposite party, or where the appellant would be entitled thereto in any event.' And later 'Construed in connection with the principle that the general rule that one cannot take the benefits under a judgment, order, or decree and at the same time attack its validity does not apply where the right to the benefits actually received is conceded by the opposite party, the language of the statute that an appeal shall not be a stay, applies at least to...