Townsend v. Bethlehem-Fairfield Shipyard, Inc.

• Decision Date: 14 May 1946
• Docket Number: 115.
• Parties: TOWNSEND v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc., et al.
• Court: Maryland Court of Appeals

47 A.2d 365

186 Md. 406

TOWNSEND v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc., et al.

No. 115.

Court of Appeals of Maryland

May 14, 1946

Motion for Modification Denied June 18, 1946.

Appeal from Baltimore City Court; W. Conwell Smith, Chief Judge.

Proceedings under the Workmen's Compensation Act by Georgia Townsend claimant, opposed by the Bethlehem-Fairfield Shipyard, Inc. employer, and the Maryland Casualty Company, insurer. From the award of the State Industrial Accident Commission, the claimant appealed to the Baltimore City Court where judgment was rendered for the employer and insurer for costs, and the claimant appeals.

Affirmed.

Paul Berman, of Baltimore (Sigmund Levin and Theodore B. Berman, both of Baltimore, on the brief), for appellant.

Robert E. Coughlan, Jr., of Baltimore, for appellees.

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

MARBURY Chief Judge.

Georgia Townsend, appellant here, was employed by Bethlehem-Fairfield Shipyard Inc., one of appellees, as a ship fitter. On July 12, 1944, she sustained accidental injuries arising out of and in the course of her employment. She was awarded compensation for temporary total disability for about three months, and on December 4, 1944, the State Industrial Accident Commission, as a result of a hearing, found that her temporary total disability had terminated and that she had sustained permanent partial disability. This permanent partial disability was an impairment of the functions of her left kidney, resulting from the accident.

Flack's 1943 Supplement Annotated Code, Article 101, Sec. 48, subsec. (3), provides for compensation in cases of disability partial in character but permanent in quality. This was the statute in force at the time of the accident. It has since been amended by the Act of 1945, Chap. 336. The statute, both before and after this amendment, provides that compensation in cases of permanent partial disability shall be 66 2/3% of the average weekly wages. The maximum weekly compensation was $18 a week, (increased to $20) and the minimum $8 a week, (increased to $10) and the aggregate was $3,816 (increased to $4,240). Then follow a list of specific injuries for each of which the statute fixes the number of weeks for which compensation shall be allowed. Loss or loss of use of kidney is not among the injuries specifically listed. Following the list is another clause headed 'Other Cases', which reads as follows: 'In all other cases in this class of disability the compensation shall be fifty per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment, or otherwise, if less than before the accident (but not to exceed eighteen dollars per week), payable during the continuance of such partial disability, but not to exceed three thousand dollars, and, subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest.' The 1945 amendment changes this last section by making the maximum $20 a week and making the total compensation payable $5,000 instead of $3,000. The amendments made by the Act of 1945 are not applicable to the case before us, and do not affect, in any way, the question of construction raised by the appellant here. The changes made are in amounts only.

The Commission allowed the appellant the sum of $2,000 for her permanent partial disability under the 'Other Cases' section, and stated in the order that she had no other permanent partial disability. She was given compensation at the rate of $18 per week for a period of 111 1/9 weeks. On appeal to the Baltimore City Court, the case was heard before Chief Judge Smith without a jury. Two issues were presented by appellant, the first being whether she was entitled to receive compensation for more than 111 1/9 weeks under the 'Other Cases' section, and the second, depending on the answer to the first issue being in the affirmative, was how many weeks she would be entitled to under the same section. The point attempted to be made by these issues and raised by the appellant in two prayers offered by her, is that under the 'Other Cases' section the Commission had no power to limit compensation to $2,000, but that such compensation should continue during permanent partial disability until the claimant had received $3,000, the limit fixed in the statute, or until the payment of compensation had been ended by a reconsideration by the Commission. The trial judge followed the decisions of this Court, approving the practice of the Commission in allowing less than $3,000 in cases coming under the 'Other Cases' section, and affirmed the award of the Commission. From his decision and judgment for the employer and insurer for costs, the appeal comes here by the claimant.

There was no dispute as to the facts about the accident and no dispute about the permanency of the partial disability, although the doctors did differ somewhat as to its effect on the wage-earning capacity of the appellant. The case, as heard under Trial Rule 9, Rules of Practice and Procedure, is conducted as an equity case, and the Judge gives his reasons in his opinion and enters his judgment. Maryland Casualty Company v. Wolff, 180 Md. 513, at page 519, 25 A.2d 665, Clauss v. Board of Education, 181 Md. 513, at page 525, 30 A.2d 779, Bank v. Charles Meyers Co.,

182 Md. 556, at page 560, 35 A.2d 110. It is not necessary under the Workmen's Compensation Act to have issues in such a case, even if facts are required to be decided, (which is not the case here) although in some jurisdictions the rules of court require issues, and it is generally a good practice. Liberty Mutual Insurance Co. v. United States Fidelity & Guaranty Co., 164 Md. 117, at page 121, 164 A. 179. Prayers are not necessary, and, if offered, only have the effect of calling the courts' attention to specific questions of law and the court is not obliged to rule upon them. Harford Metal Products Corporation v. Tidewater Express Co. Lines, 183 Md. 105, 36 A.2d 677.

The construction of 'Other Cases' clause of Sec. 48 of Article 101, is not one of first impression here. This the appellant readily admits. But she asks us to reexamine and review what she contends is an erroneous construction heretofore adopted, to overrule the previous decisions of this Court, and to construe the clause by giving effect to what she claims are the clear and unambiguous words of the statute. She states that the point was not argued in the previous cases, and the attention of the Court was not directed to the consequences of its findings.

The 'Other Cases' clause was in the original Act of 1914, Chap. 800, Sec. 35. At that time the limit of the weekly payment was $12 but the total limit of compensation was $3,000, as it remained until the passage of Ch. 336, Act of 1945. The weekly limit was increased to $18 by the Act of 1920, Chap. 456. The clause remained as amended by the Act of 1920 until it was changed by the Act of 1945. It was first considered by this Court in 1928 in the case of Coca-Cola Bottling Works v. Lilly, 154 Md. 239, 140 A. 215, 218. In that case the injured man was allowed compensation for temporary total disability and later for permanent partial disability resulting from an injury which was not one of those specifically mentioned. The Commission allowed him compensation for the latter disability for 50 weeks at the rate of $16.67 a week. The contention was whether the Commission could award compensation for permanent partial disability for injuries other than those specifically mentioned. The Court, speaking through Judge Pattison, said 'The commission is given authority by the statute to award compensation for temporary total disability, and, in addition thereto, permanent partial disability, and it has we think, as incident to such authority, the power to determine how such compensation shall be paid, without any further specific authority. The effect of this provision of the statute is not, we think, to deprive the commission of that authority or power where the injury or loss is not one of those specifically named, but to require the commission, in cases where the specifically named injuries and losses are involved, to pay the compensation in the manner there stated.' In the same year a case came here from the Baltimore City Court where a man had been awarded compensation for permanent partial disability resulting from loss of hearing of his right ear, caused by an accident. After he had received the full scheduled compensation allowed by statute for this specific injury, he filed another application for compensation for disability claimed to be the result of the loss of the sense of equilibrium. The Commission awarded him additional compensation in the sum of $1,000, payable at the rate of $8 a week for 125 weeks. This was stated by this Court, in its opinion, to have been made under the sub-caption 'Other Cases'. The 'Other Cases' section was considered in connection with the proposition that the test provided by it was not loss of wages, but loss of earning capacity, and the Court affirmed the award, stating 'It is clearly contemplated by the statute that the commission shall consider from time to time any new disability, provided the aggregate of allowance for permanent partial disability shall not exceed $3,000.' It is expressly provided in the 'Other Cases' clause that the award shall be 'subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest.' Baltimore Publishing Co. v. Hendricks, 156 Md. 74 at page 80, 143 A. 654, 656. In Baltimore Tube Co. v. Dove, 164 Md. 87, 164 A. 161, 166, the claimant was awarded...