Bethlehem Steel Co. v. Ruff

Hammond, J., delivered the opinion of the Court. The appeal in this case requires a determination of the operation and effect of the waiver and apportionment provisions of the Workmen’s Compensation Law. As a result of an injury suffered on September 18, 1950 by Matthew Ruff, the appellee, while working for Bethlehem Steel Company, the appellant, the State Industrial Accident Commission awarded compensation for permanent partial disability of the back, based on a loss of use of twenty per cent, of which fifteen per cent was due to preexisting disease or infirmity and five per cent due to the accident. On appeal to the Court of Common Pleas of Baltimore City, the jury made the same finding as had the Commission, thereby confirming the award of $375.00.

Ruff has been employed by Bethlehem for many years. He has suffered a succession of industrial accidents, three of which are of pertinence and significance here. On January 3, 1948, he sustained an injury to his back, which the doctor of his selection, Dr. Ullrich, estimated ³⁹¹ to have caused a ten per cent permanent disability. His claim was settled by Bethlehem for $950.00.

On December 7, 1948 Ruff suffered another accidental injury while at work. The Commission referred him to Dr. Ullrich, who found that the second injury had produced an additional ten per cent permanent disability, making twenty per cent in all. Bethlehem settled again, this time in the amount of $850.00. Ruff returned to work and says, in his testimony, that his back had stopped bothering him before he settled, that he continued to do his usual heavy work as a car dresser (in which he had to handle three or four hundred pound boxes in railroad cars and open and shut the doors of the loaded cars) and was working regularly every day until December 18, 1950, when a metal hook he was using to pull shut a box car door snapped in two and “throwed me up against the truck wheel and that sprained my back”.

He was totally disabled for several weeks and was paid compensation for that disability. Bethlehem, however, would not pay Matthew for claimed permanent partial disability, saying to him in effect what, in the words of another Matthew (Chapter 20), the householder said to his labourer in the vineyard: “Friend, I do thee no wrong; didst not thou agree with me for a penny?” This agreement was in the form of a waiver, which Bethlehem had required him to execute as part of the $850.00 settlement. The waiver, dated July 13, 1949, says in part: “As of the above date I have the following disability which is described as follows: Disability to back as per report of Dr. Henry F. Ullrich attached hereto amounting to 20% of loss of use of back; . . . “I understand that if at any time in the future I should sustain an accidental injury or incur an occupational disease arising out of or in the course of my employment with Bethlehem Steel Company and said accidental injury or occupational disease is caused by my existing disability or disease or infirmity as above set forth, or if said accidental injury or said occupational ³⁹² disease should increase, aggravate, accelerate or add to my existing disability, disease or infirmity, as specifically set out above, I shall only be entitled to compensation, medical, hospital and/or surgical expense for the disability or occupational disease, if any, which may result solely from such future accidental injury or occupational disease if I should sustain such an injury or incur such a disease. “I understand that this waiver has been drawn in accordance with the provisions of the Maryland Workmen’s Compensation Act, and I intend to and hereby do waive any and all benefits under' said Act which may be waived or given up under the provisions of Section 35 (1), 35 (4), and Section 52, and any other similar provisions of the Workmen’s Compensation Act which may now or hereafter be enacted.” The appellant’s contentions are, first, that the evidence shows as a matter of law that the disability referred to in the waiver was the natural and proximate cause of' the disability for which claim is now made, so that the waiver, under Section 52 of Article 101 of the Annotated Code of' Maryland, 1951 Edition, is an absolute bar to recovery, and second, that the present disability must exceed twenty per cent if any of it is to be attributed to the last accident, because of Ruff’s July 13, 1949 stipulation that he then had twenty per cent disability. Motions were made to instruct the' jury on each contention and for judgment on each ground.

The court, refusing to instruct as requested, and denying the motions for judgment, submitted the case on three issues: 1, was there a loss of industrial use of the body; 2, if there was such a present disability, is any part due to a pre-existing disease or infirmity; and 3, if so, what proportion of that disability is due solely to the accidental injury? We think the court was not required to go further and that its charge was without prejudical error. ³⁹³ The Workmen’s Compensation Law was first enacted in Maryland in 1914. Section 52 of Chapter 800 of the Acts of that year provided: “No employer or employee who are subject to the provisions of this Act shall exempt himself from the burden or waive the benefits of this Act by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void.” No waiver of any kind was permitted until 1931. In that year, as a result of the work of a Committee appointed by Governor Ritchie to revise the compensation laws, apportionment and waiver provisions were enacted, probably inspired by the decisions of this Court in Dickson Construction & Repair Co. v. Beasley, 146 Md. 568 and Congoleum Nairn, Inc. v. Brown, 158 Md. 285 .

See Bata Shoe Co. v. Chvojan, 188 Md. 153, 156 . The apportionment provision, now codified as Section 35 (7) of Article 101 of the Annotated Code of Maryland, 1951 Edition, requires that whenever “any disability . . . following an accidental injury” is due partly to such injury and partly to a pre-existing “disease or infirmity”, the Commission must determine the proportion of the disability “reasonably attributable to the injury” and the proportion so attributable to the prior condition and award compensation only for that proportion due solely to “the accident”. The waiver provision is now codified in sub-paragraph 1 (b) of the same Section as the apportionment provisions. Under it any employee who has suffered the loss or loss of use of a “hand, arm, foot, leg or eye” may waive, in writing, the right to compensation in case of a subsequent accidental injury except “the compensation for the disability resulting solely from such additional accidental injury”.

In 1941 Section 52 of Article 101 was first amended to add, after the original 1914 language quoted above, the following: “except that an employee who has previously sustained any injury or partial disability may, by a written contract freely and voluntarily en ³⁹⁴ tered into by him and executed in the presence of two subscribing witnesses, waive the benefit of this Article as to any subsequent injury naturally and proximately caused by such previous injury or disability.” The medical testimony is unanimous that Ruff’s back was defective by reason of hypertrophic arthritis and a congenital abnormal joint structure. The appellant contends that the disability now claimed is caused by these, defects or by the previous accidents or both, so that the waiver, as permitted by Section 52, is a complete bar to any compensation. In other words, the appellant says that Section 52 operates because the present disability was naturally and proximately caused by the prior disability. Section 52 does not say in its very words what the appellant claims it means and we think it was neither intended to, nor does, so mean.

Under Section 52 the waiver permitted is as to “the benefit of this Article as to any subsequent injury naturally and proximately caused by such previous injury or disability.” The statute is specific in referring to the previous injury or disability but refers only to the subsequent injury. The Legislature must be presumed to have been deliberate in the distinction. The term injury has been used to convey, and interpreted to have, different meanings in various contexts in the compensation Article. An employee may suffer an industrial accident which definitely injuries him but so slightly that he incurs no expense, loses no time and has no after effects.

There the injury and • the accident would be as one and neither would be the forerunner of disability. There are four compensable disabilities. Such incapacity may be total or partial, and in either case, temporary or permanent.' An accidental injury may cause any one of the four disabilities instantly or, on the other hand, the effects of the injury may not come about or appear until after an interval of time. If the injury and the disability are as one in point of time, there is then a compensable injury which “for all practical effects, is the same, as disability”. ³⁹⁵ Griffin v. Rustless Iron and Steel Co., 187 Md. 524, 532 ; and Baltimore Steel Co. v. Burch, 187 Md. 209 .

Yet the injury and the disability may be separate, both practically and in the contemplation of the law. Article 101 of the Code evidences in many places the recognition that injury and disability are not necessarily or always synonymous and that injury and accident may be and often are used synonymously, with disability following