Bosley & Maryland Casualty Co. v. Jackson

Marbury, J., delivered the opinion of the Court. This appeal is from a judgment of the Superior Court of Baltimore City where Judge Byrnes, sitting without a jury, affirmed a decision of the Workmen’s Compensation Commission ruling that on the facts of this.case apportionment was not required as a matter of law. ⁴⁰³ The Commission found, inter alia, that the claimant, Malcolm Clark, on July 13, 1962, sustained an accidental injury arising out of and in the course of his employment; that he was temporarily totally disabled from July 14, 1962 to May 27, 1963, and had since become permanently totally disabled; and that the employer and insurer were liable for the payment of all medical and hospital expenses resulting from the accidental injury. On October 14, 1964, the Commission issued an order that the employer and insurer pay the claimant compensation for temporary total disability at the rate of $45.82 weekly for the period beginning July 14, 1962, and ending May 27, 1963, and to further compensate him for permanent total disability at the rate of $45.82 weekly beginning May 28, 1963, not to exceed the sum of $30,000, and also that they pay all hospital and medical expenses incurred by the claimant as the result of his accidental injury. During the pendency of an appeal to the Superior Court of Baltimore City from the decision of the Commission, the claimant died, and the appellee here, Mabel Jackson, was appointed administratrix and substituted as a party in the proceedings.

At the time the injury occurred, the claimant had been employed as a truck driver by the appellant Bosley, for a period of fifteen years. At this time he was fifty-three years old and had been employed as a laborer or truck driver during his entire adult life. On the day of the accident, the claimant was hauling hot asphalt and while in the process of delivering a load he had climbed onto the truck body, as he was required to do, for the purpose of removing a piece of canvas weighing thirty-five to forty pounds used to cover the hot asphalt. The canvas was caught on the truck body necessitating extra exertion on the claimant’s part to free it and before he could remove it completely he became dizzy and had to get down from the truck.

The claimant continued to be dizzy, have trouble with his vision, and feel bad, and when he finally got the load dumped he picked up an extra driver and went back to his place of employment where he was told to go home. He then went to Maryland General Hospital where he was given some pills and told to see his family doctor. The next day the claimant was feeling ⁴⁰⁴ worse and went to a Dr. Davis, who diagnosed the claimant as having had a stroke. This was on Saturday and by Monday the claimant was paralyzed and had to be hospitalized.

He never returned to work after the accident. The appellant employer and insurance carrier appealed, claiming that the claimant suffered from a pre-existing disease or infirmity which caused or contributed to his disability, requiring the award of the Compensation Commission to be apportioned. We agree with this contention. The sole medical testimony in the case was by Dr. Neal Aaronson, a qualified neurosurgeon, who examined the claimant on May 27, 1963.

He testified that the