Consolidation Coal Co. v. Porter

Collins, J., delivered the opinion of the Court. This is an appeal by Consolidation Coal Company, employer, appellant, from an order of the Circuit Court for Allegany County, affirming an order of the State Industrial Accident Commission (the Commission), awarding compensation to William Porter, employee, appellee, at the rate of $23.00 per week during the continuance of permanent total disability resulting from silicosis, not to exceed $5,050. The appellee was employed by the Consolidation Coal Company beginning in 1924 and continuing until March 1, 1944. In March, 1944, the appellant sold out to the Consolidated Fuel Company.

The appellee continued his work as usual. From March 1, 1944, to April 15, 1944, he worked for the Consolidated Fuel Company. He ceased work on April 15, 1944, because of pains in his chest, cough, sputum, weakness, loss of appetite and slight loss of weight. At that time he consulted a doctor at Frost-burg, Maryland, who according to the appellee, made a diagnosis of “bronchial condition”.

No X-ray was made of his chest at that time. During the period he was employed by the appellant he dug coal for about six months. He then ran a motor, hauling coal out of the mine. In driving this motor it was necessary to put sand on the tracks to make the motor hold and pull on steep grades.

He did not work again until the middle of June, 1944, when he started driving a truck for a bread company. He stopped this work in about two months because he was not making enough money. In November of that year he went to work with an insurance company and worked there until November, 1945, when he quit because of his physical condition and has not worked since. He ⁴⁹⁷ consulted another doctor at Frostburg in January, 1947, and, according to the appellee, he was told he could be cured by penicillin.

The same month he went to see Dr. Rozum of Cumberland who sent him to Dr. Rathbone on January 10, 1947, for an X-ray examination and he diagnosed appellee’s case as sand dust in the lungs or silicosis. Dr. Rathbone sent him to Dr. Van Ormer on January 22, 1947, who examined the X-ray picture made by Dr. Rathbone and who, having learned that the appellee had been exposed to sand dust, confirmed Dr. Rathbone’s diagnosis as silicosis, an occupational disease. On January 20, 1947, appellee filed his claim for compensation against the Consolidated Fuel Company for permanent total disability by reason of silicosis. It having been determined that he worked for the Consolidated Fuel Company only about thirty-four days, he was advised by the director of claims of the Commission to amend his claim to include Consolidation Coal Company.

He then filed on February 12, 1947, a claim against the appellant for permanent total disability by reason of silicosis. It appears that in November, 1945, the Consolidation Coal Company became merged with another company and became known as the Pittsburgh Consolidation Coal Company. Hearings were held before the Medical Board for Occupational Diseases (the Board) in Cumberland on February 18, 1947, and on July 15, 1947. The Board, when testimony was taken and medical reports filed, found no liability on the part of the Consolidated Fuel Company because appellee was employed by it for only thirty-four days; that appellee stopped work for the Consolidation Coal Company February 29, 1944; that the first distinct manifestation of his disease (silicosis) was approximately April 15, 1944, the date he stopped work with the Consolidated Fuel Company; that permanent total disability began in November, 1945; and that the claim against the Consolidation Coal Company was filed February 12, 1947. ⁴⁹⁸ On September 8, 1947, the attorney for appellant requested that the matter be set down before the Commission for review and argument on legal questions.

A hearing was set before Commission on October 10, 1947. The Commission reviewed the testimony before the Board and after argument by counsel dismissed the claim against the Consolidated Fuel Company and found appellee was permanently totally disabled; that appellee gave notice to the employer within ten days, the time required by law; that the first date appellee was aware and had knowledge of the distinct manifestation of silicosis was the latter part of January, 1947. The Commission also found that the first knowledge appellee had that he was suffering from silicosis was the latter part of January, 1947, as he had been so advised by his doctor and therefore appellee did file with the Commission within one year from the date of disability his claim for disability from an occupational disease against Consolidation Coal Company. The Commission also dismissed the claim against the Pittsburgh Consolidation Coal Company and ordered that the Consolidation Coal Company pay appellee $23.00 per week during the continuance of permanent total disability resulting from silicosis, not to exceed $5,050.

From that order of the Commission the Consolidation Coal Company appealed to the Circuit Court for Allegany County. In the Circuit Court appellant pleaded limitations, claiming that written notice of appellee for compensable occupational disease was not given by appellee to Consolidation Coal Company within ten days after the first distinct manifestation of the disease, and that the claim was not filed by the appellee before the Commission within one year from the beginning of disability for which claim was. made. The trial judge, after hearing, affirmed the order of the Commission. From that order appellant appeals here.

Appellant contends that the findings of fact by the Board are final and binding upon the Commission and upon the Circuit Court for Allegany County upon appeal ⁴⁹⁹ because there had been no request for a review of the record; further, that the limitations in Article 101, Section 26 and 38 of the Code (1947 Supplement), bar the allowance of the claim against appellant. In appeals from the Medical Board to the Commission in occupational disease cases the Commission renders its decision or award upon all issues referred to the Medical Board. It is not bound by any finding of the Board either as to medical or legal questions, or as to the facts of the case. In appeals in occupational disease cases from the Commission to the courts, the findings of fact by the Commission are final and not subject to review by the courts.

Article 101, Section 29 (1947 Supplement Code). Bethlehem-Sparrows Point Shipyard v. Bishop, 189 Md. 147, 154, 156 , 55 A. 2d 507, 510, 511 . In the instant case the attorney for the Consolidation Coal Company in his letter of September 5, 1947, asked that the case be set down before the Commission “for review and argument on legal questions”. It therefore appears that there was an appeal from the finding of the Board to the Commission, at least on the legal question, which is the only question in the case.

Article 101, Section 26, supra, enacted as Chapter 465 of the Acts of 1939, provides in part: “Written notice shall be given to the employer of an occupational disease by the employee or some one in his behalf within ten (10) days after the first distinct manifestation thereof, * * *. If no claim for disability or death from an occupational disease be filed with the State Industrial Accident Commission within one (1) year from the date of disablement or death, as the case may be, the right to compensation for such disease shall be forever barred; * * (Italics supplied here.) Article 101, Section 38, provides in part: “That failure of an employee to file a claim for compensation within one year after the beginning of his disability shall constitute a complete bar to any claim under this Article, unless it shall be established that failure to file such claim was induced or occasioned by fraud, or by facts ⁵⁰⁰ and circumstances amounting to an estoppel, in which case the claim shall be filed within one year from thé time of the discovery of the fraud, or within one year from the time when the facts and circumstances amounting to an estoppel cease to operate, and not afterwards.” This section was in effect before the enactment of the occupational disease statute and is not applicable to this case because Section 26, supra, governs in occupational disease cases. Article 101, Section 67(15), provides: “‘Disablement’, as used in Sections 21, 22, 27, 28 and 29 of this Article (applicable here), means the event of an employee’s becoming actually incapacitated, either partially or totally, because of an occupational disease, from performing his work in the last occupation in which exposed to the hazards of such disease; and ‘disability’ means the state of being so incapacitated. Disablement and disability shall be determined by the Medical Board as herein provided.” Article 101, Section 24, provides in part: “Compensation shall not be payable for partial disability due to silicosis * * *”.

It has been said that partial disability from silicosis is nonexistent and also that the medical diagnosis of lung disease is very difficult. Maryland Law Review, Occupational Diseases, Volume IV, No. 2, pages 150 and 152. There is no doubt in this case that the first knowledge any one had that appellee was suffering from silicosis, or that there was any causal connection between claimant’s employment and his disability, was in the latter part of January, 1947. There is also no doubt that claimant was reasonably diligent in determining the cause of his disability.

There is also no doubt that appellee filed his claim within ten days after the time he was aware of and had knowledge of the first distinct manifestation of silicosis. There is also no doubt that there was a “manifestation” of some disability in April, 1944, but no one at that time knew of any causal connection between claimant’s occupation and that disability. The legal question before us is therefore whether the words ⁵⁰¹ of the statute, Article 101, Section 26, supra, mean that limitations start to run in occupational disease cases after the first distinct manifestation of the occupational disease to the employee or to some one in his behalf. Apparently, this is a case of first impression in this Court.

Appellant refers us to many cases dealing with the question of limitations as applied to injuries. Dunstan v. Bethlehem Steel Company, 187 Md. 571 , 51 A. 2d 288 ; West Virginia Pulp & Paper Co. v. Morton, 185 Md. 623 , 45 A. 2d 725 ; Bethlehem-Sparrows Point Shipyard v. Glass, 188 Md. 501 , 53 A. 2d 405 . However, as those cases involve injuries and not occupational diseases they are not helpful here. The case of Griffin v. Rustless Iron & Steel Co., 187 Md. 524 , 51 A. 2d 280 , involved an injury by reason of an explosion in August, 1939, at which time claimant was sprayed with a hot lead solution.

He did not learn until May, 1945, that there was a causal connection between the accident and the total loss of sight of his eye. In that case many out of state cases were reviewed and it was said, 180 Md. at page 540, 51 A. 2d at page 288: “We think, however, that the wording of the Maryland statute indicates that the period of limitation begins to run from the time when disability becomes, or should become, reasonably apparent. And we hold that this does not mean the particular class of disability for which