Bata Shoe Co. v. Chvojan

¹⁵⁵ Henderson, J., delivered the opinion of the Court. This appeal is from a judgment of the Circuit Court for Harford County affirming a decision of the State Industrial Accident Commission. The Commission found that “as a result of the accidental personal injury of May 24, 1945, the claimant sustained a permanent partial disability resulting in 100 per cent, loss of use of his right arm,” and that “the employer and insurer had no waiver from the claimant pertaining to his permanent partial disability resulting from a previous accident.” The Commission ordered that compensation for temporary total disability terminate as of August 6, 1945, and that the employer and insurer pay “compensation for permanent partial disability at the rate of $18.00 per week, payable weekly, for the period of 212 weeks beginning on August 7, 1945,” a total of $3,816. On appeal from this decision, the case was tried before the court, without a jury, on an agreed statement of facts.

The appellant filed three motions requesting the court to apportion the claimant’s present disability between that resulting from a prior injury to his right hand and that resulting from the subsequent injury to his right arm. All three motions (which presented varying theories of apportionment) were overruled, and judgment was entered affirming the Commission’s order. On November 27, 1939, the claimant sustained an injury to his right hand, involving the loss of four fingers, while employed by the Bata Shoe Company. Claim for compensation was filed, and on May 28, 1940, an award was made allowing him 150 weeks at $8.40 per week, a total of $1,260, for 100 per cent, loss of use of his right hand.

The award was paid in full. The claimant returned to work for the Bata Shoe Company as soon as the temporary total disability caused by this injury ceased. On May 25, 1945, the claimant sustained a second injury to his right arm. Temporary total disability was awarded and paid until August 6, 1945, when he returned to work.

On May 29, 1946, the Commission made the award appealed from. It is stipulated that the dis ¹⁵⁶ ability from the second injury alone amounts to 75 per cent, permanent loss of use of the claimant’s right arm, without considering the pre-existing loss of use of his right hand. In other words, it is agreed that while the present injury amounts to 100 per cent, loss of use of the arm, only 75 per cent, of such loss is attributable to the accident in 1945. The remaining 25 per cent, loss of use of the arm is attributable to the 100 per cent, loss of use of the hand in the accident in 1939.

The apportionment provision of the Compensation Law (Code, Art. 101, Sec. 35, as amended by Laws 1945, c. 335) provides: “* * * Whenever it shall appear that any disability from which any 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 injury and the proportion thereof 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 proportion of his disability which is reasonably attributable to the pre-existing disease or infirmity. * * * In an earlier portion of this same section it is provided: “* * * 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. * * *” Both of these provisions were first introduced into the Compensation Law in 1931 (ch. 363, Acts of 1931) . It ¹⁵⁷ was conceded in argument that they were probably inspired by the decisions of this Court in Dickson Construction & Repair Co. v. Beasley, 146 Md. 568 , 126 A. 907 , and Congoleum Nairn, Inc. v. Brown, 158 Md. 285 , 148 A. 220 , 67 A. L. R. 780. In the Beasley case, it was held that recovery could be had for a disease or infection set in motion or aggravated by injury, while in the Brown case it was held that if an injury deprived a claimant of all the capacity he had left after a previous injury, the result should be classed as total disability from the injury. The appellee contends that there is no showing in the case at bar that any part of the disability is due to a pre-existing “disease or infirmity,” because the word “infirmity,” as used in the statute in conjunction with the word “disease,” was not intended to include disability or loss of use of any of the extremities or eyes.

Stated more broadly, the contention is that “infirmity,” if not synonymous with “disease,” refers to a condition other than one