Smith v. Revere Copper and Brass, Inc.

• Decision Date: 01 November 1950
• Docket Number: 1.
• Citation: 76 A.2d 147,196 Md. 160
• Parties: SMITH v. REVERE COPPER & BRASS, Inc.
• Court: Maryland Court of Appeals

76 A.2d 147

196 Md. 160

SMITH v. REVERE COPPER & BRASS, Inc.

No. 1.

Court of Appeals of Maryland.

November 1, 1950

Paul Berman, Baltimore (Sigmund Levin, Theodore B Berman and Hyman I. Cohen, all of Baltimore, on the brief) for appellant.

Paul M Higinbothom and Paul R. Kach, both of Baltimore, for appellee.

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

MARKELL, Judge.

This is an appeal by claimant from a judgment, entered January 9, 1950 affirming a decision, dated September 18, 1945, of the State Industrial Accident Commission. Claimant was injured on November 19, 1944; his injuries consisted of severe burns. He was awarded compensation for temporary total disability. By the later order of September 18, 1945 the Commission found that his temporary total disability terminated on May 6, 1945; that he 'sustained a permanent partial disability resulting in disfigurement and mutilation to his abdomen, chest, both groins, right arm and wrist, and genitalia', for which the Commission awarded compensation for the period of forty weeks; and that 'there is no other permanent disability'. Claimant accepted and has collected the award for disfigurement, but appealed and, in the lower court and here, claimed partial loss of use of his right arm. The lower court dismissed all proposed issues regarding this claim.

We are not called upon, and are not in a position, to fix or apportion responsibility for the delay in the disposition of this case in the lower court. It may be noted that our decision on the present claim is controlled by our opinions in cases decided while this case was pending in the lower court.

Employer contends that the judgment should be affirmed or the appeal to this court dismissed, because (a) no question regarding loss of use of the arm was submitted to or passed upon by the Commission, Benoni v. Bethlehem-Fairfield Shipyard, 188 Md. 306, 52 A.2d 613; (b) claimant cannot be compensated both for disfigurement of the arm and for partial loss of use of it, Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A.2d 799; Southern States Marketing Cooperative v. Lippa, Md., 67 A.2d 244; (c) claimant after accepting the award in his favor cannot appeal from it, Bethlehem Steel Co. v. Mayo, 168 Md. 410, 177 A. 910; and (d) claimant waived or lost his appeal from the commission, while it was pending, by (i) asking the Commission to reopen the case (which the Commission refused to do) and (ii) asking a stay of proceedings in the lower court (which was not granted).

At the hearing before the Commission on September 11, 1945 claimant testified that since May 6, 1945, he had been back to work, doing his regular work, but had lost approximately one-third of his time, as a result of his injuries; '* * * I haven't full movement of my arm. I can't raise it to the full extent * * *'; he is not able to do the work he formerly did, because of 'the fact that I can't lift the way I used to and can't climb and my work has always been of a strenuous nature'; when he raised his right arm, it pains him; he can raise it about half way. The employer's physician testified, on cross-examination, that he could raise it 'about half the normal distance, when he begins to complain of pain in the pectoral muscles.'

We think this was enough evidence to bring the question of loss of use of the arm to the attention of the Commission. In Jackson v. Bethlehem-Sparrows Point Shipyard, 189 Md. 583, 590, 56 A.2d 702, 705, we said, 'The Commission made no specific eye award, and found he had no permanent disabilities other than those mentioned, which did not include his eyes. We think appellant was entitled to have the issues referring to his eyes submitted to a jury. The testimony given before the Commission might be insufficient to justify an award, but he is entitled to offer additional evidence before a Court of a jury. It is not requisite that the evidence before the Commission should be legally sufficient to support the issues. It is sufficient if there is enough evidence to bring the question to the attention of the Commission, so that it can be passed upon'. See also Bonner v. Celanese Corporation, Md., 72 A.2d 686, 688. If we were passing upon the legal sufficiency of the evidence, the evidence above mentioned might or might not be supported or qualified by other evidence which we have not mentioned.

Claimant cannot be compensated both for disfigurement of the arm and for loss of use of it. Bethlehem-Sparrows Point Shipyard v. Damasiewicz, supra; Southern States Marketing Cooperative v. Lippa, supra. As a corollary to the cases cited, we think he may have the loss of use, if any, determined and is entitled to compensation for either disfigurement or loss of use, whichever compensation would be greater. If he should be entitled to more than forty weeks' compensation for loss of use, the compensation already received for disfigurement would be credited against the total for loss of use.

Claimant only, and not employer, appealed from the Commission's decision. The amount of compensation for disfigurement is not a question of fact to be submitted to the jury. Bethlehem-Sparrows Point Shipyard v. Damasiewicz, supra, 187 Md. at page 483, 50 A.2d at page 804. It is...