Subsequent Injury Fund v. Pack

• Decision Date: 05 June 1968
• Docket Number: No. 428,428
• Citation: 242 A.2d 506,250 Md. 306
• Parties: SUBSEQUENT INJURY FUND v. Lester PACK et al.
• Court: Maryland Court of Appeals

Page 306

250 Md. 306

242 A.2d 506

SUBSEQUENT INJURY FUND v. Lester PACK et al.

No. 428.

Court of Appeals of Maryland.

June 5, 1968.

Albert A. Levin, Baltimore, for appellant.

Maurice J. Pressman, Baltimore (Richard W. Kupfer, Baltimore, on the brief), for Lester Pack; no brief filed on behalf of State Accident Fund.

Before HAMMOND, C. J., and HORNEY ^*, McWILLIAMS, FINAN and SINGLEY, JJ.

FINAN, Judge.

This case presents the question of whether the Subsequent Injury Fund has authority to appeal an order or an award of the Workmen's Compensation Commission. Judge Sklar in the Baltimore City Court held that it did not. We affirm.

The Subsequent Injury Fund (Fund) was created by Chapter 809 of the Acts of Maryland 1963, codified as Code (1957) Art. 101, § 66 (1964 Repl.Vol.). Its purpose was to persuade the employer to employ the handicapped individual by limiting the liability, which the employer may otherwise have incurred, in the event the previously disabled or injured individual sustained a subsequent occupational injury, although not of itself disabling, but which, coupled with previous impairment, rendered the individual permanently disabled, thus exposing the employer to liability for the cumulative effect of the prior and subsequent injuries. By the terms of the statute, if the employee sustained a subsequent compensable disability but the cumulative effect of the disability and the prior disability resulted in a permanent total or permanent partial disability, the employer and his insurance carrier would only be liable for compensation payable by reason of the subsequent injury. The Subsequent Injury Fund, funded by assessments imposed upon employers and insurers, by statute, would contribute the balance of the total award, so that the sum of the two payments would equal the compensation provided by statute for the combined effects of both the previous disability and the subsequent injury. The custodian of the Fund is the State Treasurer, and the only statutory provision involving representation of the Fund states:

'(5) In any case which shall come before the Workmen's Compensation Commission involving payments from the fund, it shall request the Attorney General to furnish a member of his staff to represent the fund in hearings before it. * * *.'

In the instant case the claimant was permanently disabled in his right hand at the time of the occupational injury to his left hand in 1965. On December 15, 1966 the Commission found that he had sustained a 50% loss of use of the left hand, which added to his prior permanent 75% loss of use of his right hand amounted to an overall 75% industrial loss of use of his body. Therefore, the Commission ordered the employer and its insurer to pay the claimant permanent partial disability not to exceed $20,000.

The insurer, alleging error of law, requested a rehearing, which was held on January 9, 1967, at which time the attorney for the Fund was requested to appear. The next day the Fund was impleaded and it later filed its issues.

On the basis of the January 9 hearing, the Commission passed a supplemental award of compensation on November 22, 1967, finding that the claimant had a prior 60% loss of use of his right hand and sustained a 50% loss of use of his left hand, which combined to produce a 70% industrial loss of use of his body. Under Art. 101 §§ 36(4) and (4a), the claimant would thus be entitled to a total of $18,680 compensation for permanent partial disability, which the Commission apportioned between the employer and the insurer on one hand and the Fund on the other. It ordered the employer and his insurer to pay $2,450 and the Fund to pay $16,230. An additional hearing was held on December 12, 1967 on the application of the claimant for a lump sum payment, which resulted in a lump sum award of $3,000 against the Fund.

The Fund, through its attorney, took appeals from the award of November 22 and the supplemental lump sum award, to the Baltimore City Court. The claimant moved to dismiss the appeals on the ground that the Fund was not a party authorized by statute to take an appeal from the Workmen's Compensation Commission. From the action of the lower court dismissing the appeals, the Fund has appealed to this Court.

The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute. Switkes v. John McShain, Inc., 202 Md. 340, 343, 96 A.2d 617, 618 (1953); 2 Poe, Pleading and Practice, (Tiffany Ed. 1925), § 826. Furthermore, the Fund itself is merely a creature of the General Assembly, and as such, it enjoys only those powers conferred upon it by statute. It follows that if we can find legislative authorization, the Fund will be a proper party to appeal.

We do not believe the appellee would challenge the conclusion that the Fund, as a result of the Commission's order, has suffered a very substantial loss. In this respect, it differs from certain agencies which we have held incapable of appealing from court decisions overruling their prior orders. See, Board of Liquor License Commissioners of Baltimore City v. Leone, 249 Md. 263, 239 A.2d A.2d 82 (1968); Maryland Board of Pharmacy v. Peco, Inc., 246 Md. 200, 198 A.2d 273 (1964); Roeder v. Brown, 192 Md. 639, 65 A.2d 333 (1949); Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207 (1938). In those cases, we held that the particular board-zoning, liquor or whatever, exercised a quasi-legislative or quasijudicial function, and consequently maintained no legal interest in the determination which would justify its appeal. Unlike those agencies, the Subsequent Injury Fund does have a direct interest in the outcome of the hearing, viz. the Commission is authorized to award the claimant compensation from the Fund, which award might possibly be the result of an erroneous application of the Workmen's Compensation Law.

However, there is a very real distinction between being aggrieved by a decision, and having a status cognizable in law as able to present a grievance. The zoning board of Baltimore City, unquestionably, is a legal entity, yet, it suffers nothing by a decision overruling its orders. Board of Zoning Appeals v. McKinney, supra. By contrast, the Fund suffers a very real loss, but its right to appeal, and thus its existence as a legal entity, has not been formulated by the Legislature.

Art. 101, § 66(5) only provides for representation of the Fund before the Commission; it does not grant the Fund any right to appeal from an adverse ruling, nor grant such authority to the special attorney representing the Fund.

The argument is made, however, that by reading Chapter 1100 of the Rules of Procedure, titled Special Proceedings, Subtitle B, Administrative Agencies, Rule B3, pertaining to appeals, together with Art. 101, § 56, convering appeals from decisions of the Workmen's Compensation Commission, the right is conferred upon the Fund to appeal from an adverse ruling of the Commission. However, this is a 'bootstrap' argument and we are of the opinion that the use of this stratagem fails to confer such right. Rule B3 provides: 'An appeal may be taken by a person now or hereafter authorized by statute to appeal.' This automatically leads one to the relevant portion of the Workmen's Compensation Law, § 56, which states:

'Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this article, may have the same reviewed * * * in the common law courts of Baltimore City * * *.' (Emphasis supplied.)

The narrow question, therefore, is whether the Fund is a 'person.' It is actually nothing more than a glomerate of money, to be disbursed by the State Treasurer on written orders of the Commission. It is not supervised, maintained or protected by a governing board, which is given the authority to appeal, as is the Unsatisfied Claim and Judgment Fund. See, Code (1957), Art. 66 1/2, §§ 150-179 (1967 Repl. Vol.). Nor is it an agency of the State, created and designated as such by the Legislature, as is the State Accident Fund. See, Code (1957), Art. 101, §§ 70, 71 (1964 Repl. Vol.). It is not a commission, corporation, trustee or other artificially created 'person.'

We have discovered only one other case where the question of whether a fund was a 'person' was raised. In Commissioner of Taxation and Finance v. Barnard Bake Shops, 274 App.Div. 317, 84 N.Y.S.2d 366...