Richard F. Kline, Inc. v. Grosh

• Decision Date: 26 January 1967
• Docket Number: No. 536,536
• Citation: 226 A.2d 147,245 Md. 236
• Parties: RICHARD F. KLINE, INC., and Great American Insurance Co. v. Courtney C. GROSH.
• Court: Maryland Court of Appeals

Page 236

245 Md. 236

226 A.2d 147

RICHARD F. KLINE, INC., and Great American Insurance Co. v. Courtney C. GROSH.

No. 536.

Court of Appeals of Maryland.

Jan. 26, 1967.

Glenn C. Michel, Frederick (Mathias, Mathias & Michel, Frederick, on the brief), and Edwin H. Miller, Hagerstown (Miller, Miller & Kuczynski, Hagerstown, on the brief), for appellants.

Ernest V. Wachs, Hagerstown, for appellee.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, McWILLIAMS and FINAN, JJ.

FINAN, Judge.

On November 11, 1960, appellee, Courtney C. Grosh (claimant below), suffered an injury to his back while attempting to lift a log during the course of his employment with the appellant Richard F. Kline, Inc., hereinafter referred to as Employer. Appellee had injured his back eight years previously while working for the Cushwa Company, as a result of which an award was made at that time by the State Industrial Accident Commission (now Workmen's Compensation Commission, hereinafter referred to as the Commission).

Appellee was examined by Dr. John Dobbie, an orthopedic surgeon, about twelve times. Dr. Dobbie's initial examination on November 18, 1960, found the appellee to be suffering from back pain which on occasion radiated into both legs. Appellee was hospitalized and a myelogram was performed on November 26, 1960, which was negative. After the myelogram it was found that appellee was suffering from thrombo-phlebitis, a complication of surgery, which added to the disability of his left leg.

The Commission held a hearing on February 16, 1962, and found on May 2, 1962:

'that the claimant's temporary total disability terminated on February 12, 1962, inclusive, and that the claimant, as a result of the accidental injury of November 11, 1960, sustained a permanent partial disability resulting in 25% loss of use of his left leg (thrombophlebitis) and a permanent partial disability under 'other cases' amounting to 15% industrial loss of use of his body as a result of the injury to his lumbar sacral area; 10% of such disability is reasonably attributable to the accidental injury of November 11, 1960, and 5% thereof is due to a pre-existing condition * * *.'

On September 4, 1964, a hearing was conducted by the Commission on appellee's petition to reopen his case on the issue of 'Nature and Extent of Disability.' The petition was granted and the appellee was referred to the Commission's Chief Medical Examiner, Dr. James N. Cianos. Dr. Cianos examined the appellee on September 16, 1964, and found 'that he had a disability of 65% of the body and 35% of the left leg.'

Dr. Dobbie's final examination took place on June 8, 1964, and he found appellee improved from the time of his 1960 examination and that 'most of his complaints were out of proportion of (sic) his physical findings and we had no further suggestions for treatment.' It was Dr. Dobbie's opinion that appellee had a 10% disability of his back and he declined to make any assessment as to the extent of disability of the left leg.

On October 8, 1964, the Commission found that 'the claimant's temporary total disability terminated on October 2, 1963, inclusive, and that the claimant, as a result of the accidental injury of November 11, 1960, has now become permanently totally disabled' and ordered the Employer and the Great American Insurance Co., Insurer, (appellants) to pay appellee 'compensation for permanent total disability at the rate of $36.00, payable weekly, * * * not to exceed the sum of $30,000.00; * * *.'

The Employer and Insurer appealed this award to the Circuit Court for Washington County asking that it review the decision of the Commission on the grounds that the medical evidence did not support a finding of permanent total disability and that the Commission erred in not considering and allowing an apportionment of the disability attributable to pre-existing conditions.

The jury heard the case on August 30, 1965. At the conclusion of the case, the appellants moved the court to remand the case to the Commission for further proceedings on the ground that it was apparent on the face of the record that the appellee 'had a 5% disability from a pre-existing injury' and that under Art. 101, § 66(1) Code (1957), the Employer should not have been liable for the entire award, as that portion of the disability attributable to a pre-existing injury should have been assessed against the Subsequent Injury Fund, and that the provisions of the Workmen's Compensation Law relation to the Subsequent Injury Fund, required the Commission, when it appears that the Fund may be assessed, to notify the Attorney General to represent the Fund (Art. 101, § 66(5)) and also to place the Fund on notice. The appellants contended that the Commission had failed to follow this procedure; that this constituted error, which substantially prejudiced their rights.

It was stipulated by counsel that a decision on this motion should be reserved until the jury brought in its findings on the issues. The court ultimately refused to grant this motion, ruling that the provisions of the Workmen's Compensation Law embracing the Subsequent Injury Fund (Art. 101, § 66) had no application to the instant case.

The appellants also excepted to the court's rejection of its prayers, Nos. 2 and 3, relating to what constitutes permanent total disability within the meaning of the Workmen's Compensation Law. However, the court did grant its No. 1 prayer concerning this question and incorporated it into its instructions to the jury, which will be discussed elsewhere in this opinion.

The appellants also took exception to that portion of the court's instruction to the jury wherein it specifically mentioned the amount of money which the claimant would be paid in the event the jury found he was not permanently disabled, as contrasted with the amount which he would receive were he found to be totally disabled, claiming that the mention of the lesser amount constituted prejudicial error.

The appellants also filed motions for a new trial and for judgment n. o. v., both of which were denied.

Upon appeal the appellants assigned the following errors: (1) the failure of the court to grant its motion to remand the proceedings to the Commission for a proper apportionment of the award; (2) the court's refusal to grant its prayers Nos. 2 and 3; (3) the court's refusal to grant its motion for a directed verdict; (4) the court's refusal to grant its motion for a judgment n. o. v.; and (5) that portion of the instructions which informed the jury of the monetary consequences to the appellee should they find him not to be permanently totally disabled.

I

We are of the opinion that the court below was correct in its refusal to remand these proceedings to the Commission for consideration of the question of apportionment under § 66 of Art. 101, referred to as the Subsequent Injury Fund. We agree with the holding of the lower court that the provisions of the Subsequent Injury Fund have no application to this case. As was noted by Judge MaLaughlin in the court below, Ch. 809 of the Acts of the General Assembly of 1963, which created the Subsequent Injury Fund, specifically provides that its effect shall be prospective only, the language of the Statute reading:

'Sec. 2. And be it further enacted, That the provisions of this Act shall only be construed prospectively and shall not be applied or interpreted to have any retrospective effect.'

In this case the subsequent injury occurred on November 11, 1960; the effective date of the Subsequent Injury Fund Act was June 1, 1963.

There is a provision in the Subsequent Injury Fund Act which requires some explanation for a better understanding of this case and it deals with those injuries which would have come under the Second Injury Fund, had such Fund continued in existence after the effective date of the Subsequent Injury Fund Act, the former Fund being discontinued after the effective date of the latter Act. This provision which is part of subsection (4) of § 66 of Art. 101, provides as follows:

'All funds in the Second Injury Fund as it existed on June 1, 1963, shall thereafter be transferred to the Subsequent Injury Fund which was created on this date; provided, that the Subsequent Injury Fund shall assume the defense and a payment of all claims made against the Second Injury Fund nor injuries which arose prior to June 1, 1963.'

However, applying the last quoted provision to the case at bar, we find that it, also, is not applicable because the first injury for which the claimant received an award, occurring while he was employed by the Cushwa Company prior to 1952, was not to any specifically named limb, organ or member of the body listed in the Second Injury Fund Act (Acts of 1945, Ch. 637). Accordingly, any contention that there should be an apportionment of the award from either of these funds is without merit. Since the Subsequent Injury Fund provisions are not applicable, it was not necessary for the Commission to notify the Attorney General that he should represent the Fund in the proceedings.

The appellants also contend that the case should have been remanded to the Commission for a further apportionment of that part of the award attributable to pre-existing conditions. The appellants advance a novel proposition, arguing that the 5% portion of the 15% disability to the back, which the Commission in its award of May 2, 1962, attributed to pre-existing conditions, continued to play an ambient role until now it represents a 21.7% disability. Their argument is that at the time of the award of the 15% disability to the back under 'Other Cases,' the 5% attributable to pre-existing conditions represented one-third of the disability to the back; that the later award of permanent total disability, rendered by the Commission on October 8, 1964, when the case was reopened, was predicated on Dr. Cianos' evaluation that the appellee sustained a 65% loss of the body and 35% loss of the...