Symons v. R. D. Grier & Sons Co., 249

• Court: Court of Special Appeals of Maryland
• Citation: 271 A.2d 398,10 Md.App. 498
• Docket Number: No. 249,249
• Parties: Iva B. SYMONS v. R. D. GRIER & SONS COMPANY et al.
• Decision Date: 07 December 1970

Page 498

10 Md.App. 498

271 A.2d 398

Iva B. SYMONS v. R. D. GRIER & SONS COMPANY et al.

No. 249.

Court of Special Appeals of Maryland.

Dec. 7, 1970.

Walter C. Anderson, Salisbury, for appellant.

D. William Simpson, Salisbury, for appellees.

Argued before ORTH, THOMPSON and POWERS, JJ.

THOMPSON, Judge.

The only substantial question presented in this appeal is the construction of the apportionment section of the Workmen's Compensation Law, Md.Code, Art. 101, § 36(7) which provides as follows:

'Apportionment of permanent disability due in part to pre-existing disease or infirmity.-Whenever it shall appear that any permanent disability from which an employee is suffering following an accidental injury, is due in part to such injury, and in part to a pre-existing disease or infirmity, the Commission shall determine the proportion of such disability which is reasonably attributable to the pre-existing disease or infirmity, and such employee shall be entitled to compensation for that proportion of his disability which is reasonably attributable solely to the accident and shall not be entitled to compensation for that propertion of his disability which is reasonably attributable to the pre-existing disease or infirmity. This subsection shall not apply to temporary total and temporary partial disability. This subsection shall not apply where the combined effects resulting from a previous impairment, as defined in § 66(1), and a subsequent accidental injury result in a permanent disability exceeding fifty per centum (50%) of the body as a whole.'

The Workmen's Compensation Commission, without giving reasons, held this section inapplicable to the instant claim. The trial court held this section did apply and remanded the case to the Commission for a determination of the proper application of the statute. The facts are not in dispute and were stipulated.

The accident from which the claim arose occurred on June 21, 1968. The claimant, William C. Symons, dropped a piece of steel on his right foot. At the time of the accident, he was suffering from a pre-existing disease, arteriosclerotic cardiovascular disease, but without suffering any previous loss of the use of his right leg. Due to the combination of the pre-existing disease and the accidental injury of June 21, 1968, his right leg was amputated above the knee and he suffered a permanent disability amounting to 100% loss of the right leg due to the amputation. One-third of the claimant's disability was reasonably attributable to the accidental injury in question and two-thirds of his permanent disability was reasonably attributable to the pre-existing disease. While the case was pending before the Commission, the claimant died; however, the medical testimony did not relate the cause of death to the accident.

I

Appellant argues on appeal that the decision of the Commission is prima facie correct and the burden of proof is upon the party attacking it, citing Md.Code, Art. 101, § 56(c), Krell v. Maryland Drydock Co., 184 Md. 428, 41 A.2d 502, Perkins v. International Union, 238 Md. 221, 208 A.2d 372. While the principle stated is true, it has no application where the question is one of law instead of fact. See Bethlehem Steel Co. v. Munday, 212 Md 214, 129 A.2d 162 and Barnes v. Myers, 163 Md. 206, 161 A. 279.

It is argued that if there is a conflict with respect to construction of the act, the conflict should be resolved in favor of the claimant, citing Lisowsky v. White, 177 Md. 377, 9 A.2d 599; Kraushar v. Cummins Construction Corp., 180 Md. 486, 25 A.2d 439. This contention overlooks the opinion of the Court of Appeals in Barnes v. Ezrine Tire Co., 249 Md. 557, 561, 241 A.2d 392, 395, wherein the Court said:

'It is true, as the claimant maintains, that where there is ambiguity in the compensation law, the uncertainty should be resolved in favor of the claimant, but that rule does not apply where, as here, there is no conflict and the intent of the legislature is clear.'

It is further argued the settled construction of the Workmen's Compensation Commission is entitled to great weight with the Court citing Savage Mfg. Co. v. Magne, 154 Md. 46, 139 A. 570; Congoleum Nairn v. Brown, 158 Md. 285, 148 A. 220, and Townsend v. Bethlehem-Fairfield Shipyard, 186 Md. 406, 47 A.2d 365. The settled construction of the Commission was not established in the record nor conceded by counsel either here or below. Thus, it has never been established in this case that a settled construction is involved.

However, in his opinion the trial judge did state he was aware of a settled construction, but held that even a settled construction could not overcome such clear language in the statute. This Court agrees with the trial judge, based on the principles hereinbefore mentioned, even if the construction were established in the record.

Appellant contends there is a distinction between a partial loss of a member and 100% loss thereof, citing Paul v. Glidden Co., 184 Md. 114, 39 A.2d 544. In that case the Court referred to the concession made by counsel that appellee would have to pay 100% for a hand in the event of a total loss. Obviously, the court's quotation of the concession of counsel made during argument is not intended to state the law and the case provides absolutely no support for any distinction between 100% loss and a lesser loss of the use of a member. The clear language of the statute certainly makes no distinction, and this Court sees no reason to make one.

II

The crux of the appellant's argument, however, is since the employer did not procure, prior to the injury, a waiver of the pre-existing illness it is estopped to assert the application of the apportionment section quoted above. He bases his claim on Md.Code, Art. 101, § 36(1)(b) which provides as follows:

'Whenever any person who has suffered the loss, or loss of use of a hand, arm, foot, leg or eye, shall enter into a contract of employment, it shall be permissible for the employee to waive in writing, either in the contract of employment, or by a separate written instrument, any right to compensation to which he would be entitled because of the pre-existing permanent partial disability, in the event of subsequent accidental injury, and in such cases the employee so suffering an additional accidental injury, shall be entitled to the compensation for the disability resulting solely from such additional accidental injury. No such waiver shall be effective unless the pre-existing permanent partial disability shall be...