C & P Telephone Co. v. Subsequent Injury Fund

Adkins, J., delivered the opinion of the Court. On December 16, 1977, John H. Fersinger, Jr., collapsed and died while carrying out duties for his employer, appellant, C & P Telephone Co. of Md. He was survived by a wholly-dependent widow and minor children. The Workmen’s Compensation Commission found that his death was due in part to a prior impairment and in part to the accidental injury that had occurred on December 16, 1977. It apportioned the cause of death 40 percent to the accidental injury and 60 percent to the prior impairment.

It ordered C & P to make payment to the extent of 40 percent of $45,000 ($18,000) and appellee, the Subsequent Injury Fund, to make payment of 60 percent of $45,000 ($27,000) upon completion of C & P’s share. It also ordered the Fund, upon completion of the payment of the $27,000, to pay all further dependency benefits, so long as the dependents continue to be totally dependent. The Fund appealed to the Baltimore City Court (Grady, C.J.) which reversed the Commission and held that the ⁵¹⁰ continuing benefits should be paid by C & P and the Fund in the same proportion (40 percent and 60 percent) as the initial benefits had been paid. On this appeal, apparently a case of first impression, C & P and amici curiae Wiremold Co. and Aetna Insurance Co. argue that the Fund should be responsible for all continuing benefits.

The Fund contends that the Baltimore City Court was correct in apportioning those benefits between it and C &P. Article 101 § 66 (1) of the Code applies when "the subsequent injury of ... an employee shall result in the death of the employee and it shall appear that death was due in part to the previous impairment and in part to the subsequent accidental injury.. . .” Under those circumstances, the Workmen’s Compensation Commission is required to "determine the proportion of such death which is reasonably attributable to the subsequent accidental injury and the proportion thereof which is reasonably attributable to the previous impairment, and the employer . . . shall be liable for the compensation payable for that proportion of the employee’s death which is reasonably attributable to the subsequent accidental injury and the Subsequent Injury Fund shall be liable for the balance ofbenefítspayable as in death cases resulting solely from an accidental injury [emphasis supplied.]” Article 101 § 36 (8) (a) provides for the benefits payable in death cases when there are surviving wholly-dependent persons. The initial benefit is set at $45,000, payable at a weekly rate specified in the statute. But if, as here, "a surviving wife ... or child continues to be totally dependent after the total amount of $45,000.00 has been paid, further payment to the surviving wife ... or child shall be paid at the same weekly rate during .. . total dependency.” The issue of whether these continuing benefits, to which a dependent is entitled as long as he or she remains in that status, should be apportioned could not have arisen in a death case prior to July 1,1973. Prior to that date, there was a fixed monetary ceiling on benefits payable in death cases. ⁵¹¹ But by Chapter 671, Laws of 1973, Art. 101 § 36 (8) (a) was amended to provide for "further payments” to dependents after payment of the total amount of $45,000.

The pertinent provisions of § 66 (1) were not changed. In deciding this controversy as to the allocation of statutory dependency benefits between an employer and the Fund, it is important to keep in mind the purpose the Fund is intended to serve. This purpose is to limit the liability of an employer who hires a handicapped individual who subsequently dies or becomes seriously disabled because of the combined effects of an injury on the job and a prior handicap or impairment. Generally speaking, this limitation is achieved by allocating to the employer liability for the effects of the subsequent injury and to the Fund the liability for the effects of the prior impairment; Anchor Motor v. Subsequent Injury Fund, 278 Md. 320 , 363 A.2d 505 (1976), affing sub nom.

Subsequent Injury Fund v. Compton, 28 Md. App. 526 , 346 A.2d 475 (1975); Subsequent Injury Fund v. Pack, 250 Md. 306 , 242 A.2d 506 (1968); Reliance Insurance Co. v. Watts, 16 Md. App. 71 , 293 A.2d 836 (1972); Subsequent Injury Fund v. Chapman, 11 Md. App. 369 , 274 A.2d 870 , aff'd per curiam 262 Md. 367 , 277 A.2d 444 (1971). In disability cases involving § 66 (1), this limiting effect is achieved by first determining the extent of disability that would have been caused by the subsequent injury, had there been no