Bonner v. Celanese Corp. of America

Henderson, J., delivered the opinion of the Court. Mabel W. Bonner sustained an injury to her back on August 23, 1944 while employed by the Celanese Corporation. She claimed compensation and received an award for temporary total disability, dated September 25, 1944. She returned to work on November 28, 1944, and worked intermittently until March 1, 1946, when she ceased work.

On March 27, 1947, through counsel, she sought a hearing on the ground that “because of the injury to her back she was unable to work and has not worked since that time.” The issues raised were (1) the nature and extent ¹² of injuries, (2) period of temporary total disability and (3) extent of permanent disability. After a hearing, at which the claimant and two physicians testified, the Commission found that her temporary total disability terminated on November 27, 1944, and that “there is no permanent disability.” Appeal was duly entered to the Circuit Court for Allegany County. At the trial two issues were submitted to a jury (1) whether the claimant was suffering a permanent disability as a result of the accident and (2) if so, what is the percentage of such disability? The jury found “100 per cent” disability.

The court granted a new trial unless on or before August 17, 1948, the claimant should authorize an amendment to the jury’s answer to the second issue by inserting the words “50 per cent” instead of “100 per cent.” The claimant did not accede, but on August 17, 1948 appealed to this court. We granted a motion to dismiss the appeal, (Bonner v. Celanese Corporation of America, 193 Md. 132 , 66 A. 2d 400 ), on the ground that there was no final judgment and the order was not appealable. We did not pass upon the questions argued, that the Court lacked authority to grant a remittitur, and that the corrective effect of a back support could not be considered in determining the extent of disability. After remand, the appellees filed a motion to affirm the award of the Commission on the ground that there were no issues of fact that could be presented to a jury, that the Commission’s finding was not arbitrary or capricious but was supported by the evidence, and that there was no evidence to show that the Commission abused its discretion.

From an order granting the motion and affirming the award, the case again comes here on appeal. Unspecified injuries resulting in permanent partial disability are dealt with in the “other cases” paragraph of section 35 (3), Article 101 of the Code, which authorizes an award of 50 per cent of the difference between the average weekly wage and the wage-earning capacity following the injury, payable during the continuance of ¹³ such partial disability, but not to exceed a fixed maximum. Prior to the amendment of this section by Chapter 895 of the Acts of 1947, effective June 1, 1947, it was construed by this court in a long line of cases reviewed in Townsend v. Beth.-Fair. Shipyard, 186 Md. 406 , 47 A. 2d 365 , as authorizing the Commission to fix the aggregate amount of the award, in any case of permanent partial disability, at less than the statutory maximum.

Since the amount depends upon the duration of the period of weekly payments, and the paragraph does not specify the number of weeks or relate such period to the extent of the injury, it was held that the fixing of the rate and period was within the sound discretion of the Commission, and could not be made the subject of an issue for a jury. Where the Commission made an award under this paragraph, it was held that its action was reviewable by the court only to determine whether the award bore a reasonable relation to the injury suffered and was supported by substantial evidence. Allen v. Glenn L. Martin Co., 188 Md. 290, 300 , 52 A. 2d 605 . The same rule was applied where the Commission found no disability, under a claim for permanent partial disability.

Porter v. Beth.Fair. Shipyard, 188 Md. 668, 676 , 53 A. 2d 668 ; Egeberg v. Maryland Steel Products Co., 190 Md. 374, 379 , 58 A. 2d 684, 686 . On the other hand, where the claim is for permanent total disability, or for one of the scheduled injuries, the problem of relating the award to the extent of disability does not arise, and issues of fact may be submitted to a jury, if the question has been raised before the Commission. In Jackson v. Bethlehem-Sparrows Point Shipyard, 189 Md. 583 , 56 A. 2d 702, 705 , we said that no issue of fact could be submitted to a court or jury on appeal where it does not appear from the record that the question involved was