Burdock v. Kaiser Aluminum & Chemical Corp.

Moore, J., delivered the opinion of the Court. • This appeal involves the applicability of certain provisions of the Workmen’s Compensation Act which may be invoked in Maryland to bar a claim for workmen’s compensation based upon an occupational disease (here, silicosis). The Medical Board for Occupational Diseases on October 31, 1972 conducted a hearing at Cumberland, Maryland on the claim of appellant, a clay miner who retired in 1968 after 43 years of mine labor. On April 25, 1973 the Board made findings on 19 of 22 separate issues, referring the remaining three issues to the Workmen’s Compensation Commission. On September 17, 1973, the Commission, upon review of the claim, found “on Issue 19 that the claim is barred by the Statute of Limitations (see medical report dated June 15, 1963 and Myersdale Community Hospital [sic] May 5, 1972).” 1 The Commission also ordered that the case be referred back “to the Medical Board of Occupational Diseases to take additional testimony on Issues 5 and 9; and that the subsequent injury fund be made a necessary party as requested by the claimant on October 2, 1972.” 2 There were no further proceedings, however, before the Medical Board.

The claimant entered an appeal, pursuant to Maryland Rule B2, to the Circuit Court for Allegany County and thereafter filed a motion for summary judgment on the ground that the Commission erred in its finding that the claim was barred by the Statute of Limitations. The ⁶³³ employer and self-insurer, Kaiser Aluminum and Chemical Corporation, also moved for summary judgment on the ground that there was legally sufficient evidence before the Commission concerning the statute of limitations to support its decision. In an opinion and order filed on January 1, 1974 the motion of the claimant-appellant was denied and that of the employer and insurer-appellee was granted. The Statutory Framework Workmen’s compensation for disability or death resulting from occupational disease in extra-hazardous employment is governed by the Workmen’s Compensation Act, Code (1957, 1964 Repl.

Vol.) Art. 101, §§ 21 to 35. Such disease first became compensable in Maryland by ch. 465 of the Acts of 1939. 3 Silicosis, for which appellant made application for compensation for permanent total disability, is an occupational disease. State of Maryland, to the use of Sara Payne Wilson v. The North East Fire Brick Company, 180 Md. 367 , 24 A. 2d 287 (1942). Writing for the Court of Appeals in Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467 , 84 A. 2d 847 (1951), Judge Delaplaine explained silicosis in the following terms: “. . .

We must recognize the fact that silicosis is a pneumoconiosis, for the development of which the inhalation of particles of silicon dioxide is necessary over a long period of time. Usually it is not until after an exposure of about fifteen years to the sand dust, when sufficient lung has been destroyed, that symptoms of air deficiency appear with shortness of breath upon exertion. As the disease progresses to an extreme degree, even slight exertion brings about more severe attacks of breathlessness, and manual labor is then difficult. Finally no work at all may be performed, resistance to infection is decreased, and usually some other disease, such as tuberculosis or pneumonia, is the cause of death.” ⁶³⁴ The disease is defined as follows in Art. 101, § 67 (14): “ ‘Silicosis’ shall mean the characteristic fibrotic condition of the lungs caused by the inhalation of silicon dioxide (Si O2) dust.” Occupational disease claims are, under the statute, subject to investigation and hearing in the first instance by a Medical Board created by Art. 101, § 27.

The Board consists of three physicians, all of whom are required to have had at least five years’ practice, two of them in the diagnosis, treatment and care of industrial diseases and the third is required to be “especially trained” in roentgenology. Any one member has the authority to hear any issues referred to the board and the determination of the issue by two members is deemed to be the determination by the board. The specific functions of the Board are set forth in § 28 which provides, in pertinent part: “The Workmen’s Compensation Commission shall refer every claim for compensation for an occupational disease to the medical board for investigation, hearing and report, excepting, however, such cases wherein there are not controverted medical issues. No award shall be made in any such case until the medical board shall have duly investigated and heard the case and made its report and its decisions with respect to all medical questions at issue.

The date of disablement, if in dispute, shall be deemed a medical question.” (Emphasis added.) 4 The same section also requires the Board to make a written report on controverted medical questions and the date of ' disablement. Thus: ⁶³⁵ “The medical board shall, as soon as practicable after it has completed its consideration of the case, report in writing its findings and conclusions on every medical question in controversy. If the date of disablement is controverted and cannot be exactly fixed scientifically, the medical board shall fix the most probable date, having regard to all the circumstances of the case. The medical board shall also include in its report a statement indicating the physician or physicians, if any, who appeared before it, and what, if any, medical reports and X-rays were considered by it.” (Emphasis added.) After the hearing before the Medical Board and the filing with the Commission of the record and transcript, any aggrieved party may file within 30 days a petition with the.

Commission requesting a review of the proceedings. Art. 101, § 29. If no such petition is filed, the Commission “shall render its decision or award which shall conform to the findings in such report and the decision of the Medical Board as to medical questions.” A restriction on review of facts by the court is also contained in § 29: “. .. In any hearing, as provided for in §§ 22-30 of this article, held by the Workmen’s Compensation Commission in any case to determine any controversial questions, no finding of fact by the Workmen’s Compensation Commission shall be subject to be reviewed or be set aside, reversed or modified.

(An. Code, 1951, § 28; 1939, § 42; 1939, ch. 465, § 32-1; 1945, ch. 528; 1951, ch. 287,'§ 29).” There is thus a correlation between Art. 101, § 29 and Art. 101, § 56 which relates to “appeals to local courts” concerning the finality of the determinations of the administrative body. Section 56 provides: “Upon the hearing of such an appeal the court shall, upon motion . . ., submit to a jury any question of fact involved in such case provided, however, that in all appeals in which occupational ⁶³⁶ diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury.” (Emphasis added.) The intent of §§ 29 and 56 was explained by Judge Digges writing for the Court of Appeals in Maryland Bureau of Mines v. Powers, 258 Md. 379 , 265 A. 2d 860 (1970): “The intent of these provisions is to finalize the determinations of the administrative body which the legislature has deemed most qualified to make medical and other factual conclusions in these types of cases. Note, 13 Md. L. Rev. 337 (1953).

The legislative judgment as to where finality should rest has fluctuated; between 1951 and 1955 the findings of the Medical Board were by statute presumed to be correct, and unreviewable if supported by legally sufficient evidence. Big Savage Ref. Corp. v. Geary, 209 Md. 362 , 121 A. 2d 212 (1956). Except for this period, finality has been vested in the Commission’s findings from the time occupational diseases were first included in the coverage of Article 101 in 1939 until the present time.

This means the pre-1951 law on the subject and the post-1955 law are the same. Martin Marietta v. Leius, 237 Md. 217 , 205 A. 2d 792 (1965); Beth. Spar. Pt.

Shipyard v. Bishop, 189 Md. 147 , 55 A. 2d 507 (1947).” 5 The role of the medical board vis-a-vis the Workmen’s Compensation Commission was explained by Chief Judge Brune in Duncan v. McNitt Coal Co., 212 Md. 386 , 129 A. 2d 523 (1957) (212 Md. at 401): “The Medical Board’s position is not precisely that of an administrative agency empowered to reach ⁶³⁷ ultimate conclusions of fact, yet it is certainly no less than that of a trial examiner in administrative proceedings or of a master in equity or other court proceedings. Its views stand or fall on its report as submitted to the Commission and the Board’s report must be made on the basis of the evidence before it and its expert interpretation thereof.” And, as the Court stated in Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147 , 55 A. 2d 507 (1947): “Finality, in so far as the legislature can make final the decision of an administrative tribunal, attaches to the decision of the Commission, not to the decision of the Medical Board.” 6 That the findings of the Commission in cases involving occupational diseases are not impervious to judicial scrutiny, however, was made plain in the following additional quotation from Judge Digges’ opinion in Powers : “In spite of the unqualified language of section 56 the findings of the Commission are not totally insulated from review by the court. We have recognized that a finding of the Commission may be reversed when it is based on an erroneous conception of the applicable law. Gower v. Davis Coal & Coke Co., 197 Md. 52 , 78 A. 2d 195 (1951).

Utilizing this principle our decisions have extended the power of review to the factual field because we have held fnjotwithstanding the finality which these statutes seek to confer upon, such findings of the Commission, they are subject to review if not supported, by substantial or legally sufficient evidence (both terms being found in the cases), and the existence of such evidence is a question of law.’ Duncan v. McNitt Coal Co., 212 Md. 386 , 129 A. 2d 523 (1957); Johnstown Coal & Coke Co. v. Dishong, ⁶³⁸ 198 Md. 467 , 84 A. 2d 847 (1951).” (Emphasis added.) To the same effect, see Mutual Chemical Co. v. Thurston, 222 Md. 86, 94 , 158 A. 2d 899 (1960). Compensation for an occupational disease is currently provided by Art. 101, § 23 (d), as amended in 1973. The language of the section applicable to appellant’s claim filed on June 16, 1972 is contained in Chapter 151, Acts 1967, as follows: “(d) When disability or death of an employee shall be due to silicosis, asbestosis or other pulmonary dust disease, the employer shall be liable for compensation if such disease causing such disability or death shall be due to the nature of the employment in which the hazards of such disease actually exist, and to a reasonable degree of medical certainty is attributable to his type of employment, and is actually incurred in his employment, provided such disability or death shall occur within five (5) years after the employee shall be found to be affected by silicosis, asbestosis, or other pulmonary dust disease.” 7 (Emphasis added.) The above underscored language has been characterized as a “limitation statute,” since it limits the employer’s liability. Johnstown Coal & Coke Co. v. Dishong, supra.

The time limitation within which the claim itself must be filed is found in Art. 101, § 26: “If no claim for disability or death from an ⁶³⁹ occupational disease be filed with the Workmen’s Compensation Commission within two (2) years from the date of disablement or the date when the claimant first has actual knowledge such disablement was caused by his employment or death, as the case may be, the right to compensation for such disease shall be forever barred.” 8 As Judge Horney observed for the Court of Appeals in Bethlehem Steel Company v. Carter, 224 Md. 19 , 165 A. 2d 902 (1960), “Strictly speaking the question is not one of limitations, but is one involving a statutory bar.” The Instant Claim Marshall J. Burdock, appellant, attended school until the fifth grade and testified before the Medical Board that he could neither read nor write. He began work as a miner in 1925 at the age of 21 and was 68 years of age when he filed his claim with the Commission on June 16, 1972. He worked at digging and drilling in the clay mines — “hard clay” and “some coal.” Describing the dust caused by the drilling, he said: “It was just everything was covered over with dust.. . like your buddy was standing here, sometimes you could hardly see him.” On April 26, 1968, he retired on a pension because he had “twenty-five years in” but not because of disablement. In retirement, he had a truck which in the beginning he could load and unload.

At the time of the hearing in October, 1972, he stated that he “did not have any wind,” that he could no longer load or unload the truck, mow the lawn or spade the garden. He testified that he was first advised that he had silicosis on May 1,1972 by his doctor at that time, Dr. Nathan O. Thomas of Myersdale, Pennsylvania. The Medical Board accepted this latter statement and found in ⁶⁴⁰ response to issue 11, that Mr. Burdock “first had knowledge of the disease” in May, 1972. Other findings made by the Board on the 22 issues before it were inter alia,: that the claimant first became disabled in 1970 (month not stated); that the date when the disease began was “unknown”; that appellant had not received treatment “specifically for silicosis”; that he had been exposed to the disease since 1925 and that he was suffering from another disease or disability (unspecified), 40% of which was due to his occupational disease.

Significantly, the Medical Board responded “yes” to Issue 15: “If the answer to any of the preceding issues find in favor of the claimant on the Issue of an Occupational Disease, did such disease occur within five (5) years as provided in Section 23 (d) of Article 101? But the Board’s answer was “Refer to Commission” to Issue 19: “If the claimant contracted an occupational disease, is his claim barred by the Statute of Limitations, as stated in Article 101, Sec. 26.” As stated previously, § 23 (d) is a limitation on the employer’s liability, entirely separate from the 2 year limit on filing a claim. According to the provisions of § 23 (d) then in effect, disability had to occur within five years after the employee “shall be found to be affected by silicosis.” While the Medical Board did find the date of disability to be 1970 (Issue 12), it did not find any date prior to 1970 when the appellant was “found to be affected by” the disease. Instead it merely concluded that the five year provision was satisfied.

Commission’s Action and Affirmance Below Neither the appellant nor the employer-insurer filed a petition under Art. 101, § 29 for a review of the record and ⁶⁴¹ proceedings before the Medical Board. 9 The Commission’s subsequent determination of the claim was stated, in pertinent part, as follows: “On review of the above claim by the Commission, the Commission finds on Issue 19 that the claim is barred by the Statute of Limitations (see medical report dated June 15, 1963 and Myersdale Community Hospital May 5, 1972 [sic]; The above