Darden v. Mass Transit Administration

MOYLAN, Judge. In the context of Workers’ Compensation law, a subsequent injury on the heels of a prior partial disability sometimes creates the arithmetic anomaly of the whole being greater than the sum of its parts. In this appeal, that anomaly poses the question of whether the subsequent employer, in such a ease, is responsible for the whole or only for a particular part. Is the responsibility of the employer in any way altered, moreover, if the subsequent employer happens to have been, coincidentally, the earlier employer as well?

To the problem of who picks up the tab for the difference when the whole is greater than the sum of its parts, Maryland responded 1) by creating, in 1963, the Subsequent Injury Fund; and 2) by forging, in the intervening 42 years, an entire body of implementing jurisprudence. Our most daunting challenge will be to unravel, almost surgically, two discrete strands of litigation that became hopelessly intertwined. Two work-related injuries occurred, over four years apart. They could have been litigated four years apart.

Seeds of confusion were sown, however, when the respective claims 1) were simultaneously heard and decided by the Workers’ Compensation Commission, 2) were simultaneously appealed to the circuit court, 3) were simultaneously remanded to the Commission, 4) were simultaneously appealed to the circuit court for a second time, and 5) are now simultaneously appealed to us. Compounding the confusion is the coincidental fact that the employer at the time of the subsequent injury also happened to have been the employer at the ²³⁴ time of the earlier injury. Under the circumstances, a fusion amounting to symbiosis was inevitable. Our challenge will be to sort out discrete juridical events and then to make every effort to see that our analysis of one does not leak into the analysis of the other.

If the two compensation claims had been litigated sequentially instead of simultaneously, this case would have been delightfully simple. Our goal will be to assess the two claims as if they had been litigated sequentially. Two Sequential Injuries It behooves us to establish, first, a proper calendar of relevant events. What matters in that regard is the chronology of the injuries, not the chronology of the litigation of the injury claims.

At all times pertinent to this case, the appellant, Percy W. Darden, was employed by the appellee, Mass Transit Administration (“MTA”), as a heavy rail operator. In both 1994 and 1998, Darden suffered work-related injuries. On both occasions he filed claims with the Workers’ Compensation Commission and on both occasions the Commission made awards in his favor. There is no dispute with respect to the merits of Darden’s claims for compensation.

The only dispute concerns the proper method for calculating the total compensation ultimately due him. The first injury occurred on January 18, 1994, when Darden slipped on the ice and fell on the right side of his body at the Wabash Avenue rail yard in Baltimore. He suffered multiple injuries and, as a result of those injuries, underwent 1) bilateral carpal tunnel surgery, 2) right trigger thumb surgery, and 3) right rotator cuff surgery. Darden filed a claim, No. B307805, with the Commission on what appears to have been March 7,1994.

The second work-related injury occurred four years later, on July 9, 1998, when Darden suffered an injury to his left knee while climbing into a subway train cab in order to re-qualify as a train operator after his right shoulder surgery. As a result of that later injury, he underwent left knee ²³⁵ surgery. For that accident in 1998, Darden filed a claim, No. 481077, with the Commission, apparently on November 24, 1999. Simultaneous Litigation Before the Commission Of the Two Distinct Claims For whatever reason, the claim for the 1994 injury and the claim for the 1998 injury were both brought before the Commission for hearings on the same date, April 1, 2002.

The Commission, however, carefully rendered separate decisions in the two cases. In its Order of April 17, 2002, the Commission found that as a result of the 1994 injury Darden had sustained: 55% under “Other Cases” industrial loss of use of the body as a result of the accidental injury, 43% of said accidental injury is reasonably attributable to the accidental injury to the left shoulder (25 weeks), right shoulder (100 weeks), left upper arm (30 weeks), right upper arm (45 weeks), left thumb (3 weeks) and right thumb (7 weeks), and 12% thereof is due to the pre-existing condition to the back, right knee, headaches, and pulmonary. The Commission also found: That the disability to the claimant’s left shoulder is causally related to the accidental injury. The Claimant is not permanently totally disabled.

(Emphasis supplied). The relief awarded was as follows: The Commission finds that the overall disability of the claimant does exceed 50% of the body as a whole and that the portion due to the pre-existing condition does not amount to the 125 weeks of disability benefits, the Subsequent Injury Fund, is not liable at this time. It is, therefore, this 17th day of April, 2002, by the Workers’ Compensation Commission ORDERED that the compensation for temporary total disability terminate on June 11, 2002 inclusive; and further ORDERED that the above-named employer and above-named insurer pay unto the above-named claimant, compensation for permanent ²³⁶ partial disability at the rate of $170.00, payable weekly, beginning June 12,1999 for a period of 215 weeks. (Emphasis supplied).

That award, at a rate of $170 per week for a period of 215 weeks, would have amounted to a payment of $36,550 to the appellant for his 1994 injury. Because the Commission found that 43% of the industrial loss of the use of the appellant’s body was directly attributable to the 1994 injury, it arrived at the compensation period of 215 weeks by taking the maximum compensable period of 500 weeks for permanent partial disability under the “Other eases” subsection and multiplying by 43%. Maryland Code, Labor and Employment Article (LE), § 9-627(k)(3). In a separate order, also filed on April 17, 2002, the Commission found that, as a result of the 1998 injury, Darden had suffered a “15% loss of the left knee.” It also found that he was “not permanently totally disabled.” The relief awarded for the 1998 injury was as follows: The Commission finds that as a result of the accidental injury sustained on July 9, 1998 the claimant was paid compensation for temporary total disability from July 12, 1999 to July 5, 2000 inclusive.

The Commission finds that the overall disability of the claimant does not exceed 50% of the body as a whole and the Subsequent Injury Fund is not liable at this time. It is, therefore, this 17th day of April, 2002, by the Workers’ Compensation Commission ORDERED that the compensation for temporary total disability terminate on July 5, 2000 inclusive; and further ORDERED that the above-named employer and above-named insurer pay unto the above-named claimant, compensation for permanent partial disability at the rate of $94.20, payable weekly, beginning July 6, 2000 for a period of 45 weeks. (Emphasis supplied). That award, at a rate of $94.20 per week for a period of 45 weeks, would have amounted to a payment of $4,239 to the appellant for his 1998 injury.

Because the Commission found ²³⁷ that Darden had suffered a 15% loss of the use of the left knee, a scheduled member, it arrived at the compensation period of 45 weeks by taking the maximum compensable period of 300 weeks for permanent partial disability based on the loss of the use of a leg and multiplying by 15%. LE § 9-627(d) and (e). The First Appeal To the Circuit Court Darden appealed both awards to the Circuit Court for Baltimore City for de novo determinations. See Board of Education v. Spradlin, 161 Md.App. 155 , 867 A.2d 370 (2005).

A problem is that we have nothing except a verdict sheet from that appeal de novo and we do not know, therefore, precisely what issues Darden raised before the jury. We may, however, be able to come up with some likely inferences. The two cases came on for a joint jury trial on March 3, 2003. After a three-day trial, the jury, in its response to the issues submitted to it, made a number of specific findings.

On the three key findings, the questions put to the jury by the verdict sheet and the jury’s answers to those questions were as follows: 3. Do you find that the Claimant, Percy W. Darden, is permanently and totally disabled as a result of the combination of the January 18, 1994 injury and July 9 1998 injury? Yes / No_ 4. What percentage of Percy W. Darden’s industrial loss of use of body (permanent total disability) do you find as a result of the January 18, 1994 injury? 70% 5.

What percentage of Percy W. Darden’s loss of use of leg (permanent total disability) do you find as a result of the July 9,1998 injury (left knee)? 30% The jury also found that the percentage of disability “due to pre-existing condition” was “7%,” but that the preexisting condition was not and was not likely to be “a hindrance to ²³⁸ claimant’s employment.” The jury also found that there was no permanent total disability as a result of either claim alone, but that there was a permanent total disability as a result of the combination of the two claims. As a result of the jury’s findings, the trial judge issued the following Order on March 7: The above captioned cases having been consolidated and come to trial before a Court and Jury on March 3, 4 and 5, 2003, testimony having been taken, exhibits having been submitted and the jury having answered issues of fact finding that the Claimant/Appellant, Percy W. Darden, is 'permanently and totally disabled as set forth in the attached Verdict Sheet. It is THEREFORE, this 7th day of March, 2003, by the Circuit Court for Baltimore City, ORDERED, that Workers’ Compensation Claim Nos. BS07805 and Bj.81077, be and are hereby reversed and remanded to the Workers’ Compensation Commission for Modified Orders consistent with the verdict of the jury. (Emphasis supplied).

Darden took no appeal from either the jury findings or the subsequent order of the circuit court. Neither did he move for a new trial or seek a clarification of any alleged ambiguity in either the findings or the court order. Those jury findings are our analytic point of departure in assessing the correctness of the subsequent awards. The Remand to the Commission On remand, the Commission, on June 17, 2003, amended its earlier orders of April 17, 2002.

At this point, let it be noted that we attach no significance to the fact that the Commission, both prior to the first appeal and again after the remand, referred to the “loss of the use of the left knee,” whereas the circuit court jury had referred to the “loss of the use of the left leg.” Section 9-627(d)(v) refers to the loss of a “leg.” It does not make finer distinctions between the ankle, the calf, the knee cap, the thigh, etc. The loss of the use of a leg is the loss of the use of a leg, whatever the more particularized ²³⁹ etiology for that loss might have been. Whenever the Commission writes “knee,” therefore, we shall, without qualm or hesitation, read “leg.” In terms of the ultimate awards, the Commission rendered separate decisions in the two cases. In Claim No. B307805, dealing with the 1994 injury, the Commission took as its point of analytic departure the jury’s finding, as the Commission recited: The claimant is permanently totally disabled as a result of the combination of the January 18, 1994 and July 9, 1998 injury. 70% of said disability is the result of the January 18, 1994 injury and 30% thereof is due to the July 9, 1998 injury to the left knee and 7% thereof is due to pre-existing conditions. In disposing of the 7% of the disability “due to pre-existing conditions,” thereby relieving us of the daunting prospect of dealing rationally with a computation that adds up to 107%, the Commission ruled that the Subsequent Injury Fund was not involved.

The Commission finds that the overall disability of the claimant does exceed 50% of the body as a whole and that the portion due to the pre-existing condition does not amount to the 125 weeks of disability benefits, the Subsequent Injury Fund is not liable at this time. (Emphasis supplied). The award in Case No. B307805, dealing with the 1994 injury, then ordered: [T]he above-named employer and above-named insurer pay unto the above-named claimant, compensation for permanent total disability at the rate of $510.00, payable weekly, beginning June 12, 2002 not to exceed the sum of $178,4.78.00 allowed, under “70% under Other Cases”, subject to a credit for monies paid under the Order dated April 17, 2002. (Emphasis supplied).

The Commission then turned to Case No. B481077, dealing with the 1998 injury. Whereas the original order of the ²⁴⁰ Commission (April 17, 2002) had found that Darden had suffered a “15% loss of the left knee,” the Commission interpreted the jury verdict of March 5, 2008, as one raising the percentage of loss of the scheduled member from 15% to 30%. Consequently, its award in that case was: An Appeal was filed in the above entitled claim in the Circuit Court for Baltimore City and as a result thereof, it is, therefore, this 17th day of June, 2003 by the Workers’ Compensation Commission ORDERED that the Order of this Commission dated April 17, 2003 is hereby AMENDED in accordance with the decision of the Court as follows: 2. PERMANENT PARTIAL DISABILITY: The claimant is not 'permanently totally disabled as a result of this injury. 30% loss of use of the left knee; at the rate of $191.00, payable weekly, beginning July 6, 2000, for a period of 90 weeks, subject to a credit for benefits paid under the Order dated April 17, 2002.

(Emphasis supplied). Whereas the Commission’s original award had been for 45 weeks of compensation, based on 15% of 300 weeks, the Commission’s recalibrated award of 90 weeks of compensation was based on 30% of 300 weeks. LE § 9-627(d) and (e). A Motion for Reconsideration And Its Denial Aggrieved that the award for the 1998 injury was calculated on the basis of a 30% permanent loss of the use of his left knee (or left leg), rather than on the basis of a 30% loss of his body as a whole, Darden moved for a rehearing.

The Commission conducted a hearing on October 22, 2003. It continued to treat the two claims as separate and distinct. On October 27, it issued two separate orders. Each order recited: Hearing was held (no testimony taken) in the above claim at Baltimore, Maryland, on October 22, 2003 on the employer and insurer’s and claimant’s Motion for Rehearing.

The Commission, having granted the Employer and Insurer’s and Claimant’s Motion for Rehearing, will affirm its Order dated June 17, 2003. ²⁴¹ It is, therefore, this 27th day of October, 2003, by the Workers’ Compensation Commission ORDERED that the Order of this Commission dated June 17, 2003, be and the same is hereby affirmed. The Second Appeal To the Circuit Court On November 5, 2003, Darden filed with the Circuit Court for Baltimore City two separate but substantively identical appeals from the two Decisions and Orders of the Commission. The MTA filed two substantively identical responses. On February 17, 2004, the court ordered the two cases to be consolidated.

Prior to the consolidation, Darden had already, on January 7, 2004, moved for summary judgment in his favor. The court conducted a hearing on the motion for summary judgment on February 13, 2004. It subsequently issued a Memorandum Opinion and Order on February 26, affirming the orders of the Commission. After summarizing the procedural background of the case and the arguments of the two parties, the court concluded: All parties contend that the case of SIF v. Compton, 28 Md.App. 526 , 346 A.2d 475 , affirmed in Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320 , 363 A.2d 505 (1976) provides support for their respective positions.

After review of the holdings in Compton and Anchor Motor Freight the Court is satisfied that the Orders of the Commission apply the correct principles of law and that its findings contained therein are supported by substantial evidence. Travers v. Baltimore Police Dept., 115 Md.App. 395, 419 , 693 A.2d 378 (1997). A Row of Fallen Dominoes We shall reverse the circuit court’s order affirming the October 27, 2003, orders of the Commission. To explain that reversal at the end of the litigational chain, however, we need to look back to the earliest falling of the first domino, the precipitating event that set a series of errors in irrevocable motion.

The circuit court was in error on February 26, 2004, ²⁴² because the Commission had been in error on October 27, 2003, just as the Commission had earlier been in error on June 17, 2003. At least part of the reason for the Commission’s error was the ambiguity of one of the jury’s responses of March 5, 2003, which, in turn, was a product of the ambiguous wording of one of the issues submitted to the jury. Contributing to the risk of ambiguity in the jury’s findings, moreover, was the ill-advised decision of Darden to take an appeal de novo in the first place from the compensation award for his 1994 injury, an award with which he had no apparent quarrel. It was in major measure that ill-advised appeal de novo that set off a chain reaction of escalating error.

Reduced to Fundamentals, This Is a Routine Subsequent Injury Case Quite aside from any question of whether the Subsequent Injury Fund itself is involved, which we will be discussing further, this should have been a routine subsequent injury case. If at first glance it is difficult to conceptualize the case in those simple terms, it is only because, although the two injuries were sequential, the two claims were litigated simultaneously, essentially as a single package. It becomes more difficult to visualize the true sequence of events when everything seems to be happening at the same time. In the usual subsequent injury case, there is a discrete sequencing gap between 1) the earlier disability and 2) the subsequent injury.

The earlier disability may have been, on the one hand, a physical or medical condition that had no connection with the Workers’ Compensation Commission. Subsequent Injury Fund v. Teneyck, 317 Md. 626 , 566 A.2d 94 (1989). It may, on the other hand, have been an industrial injury for which the Commission actually made an award. Blanding v. J.H. Andrews & Sons, 36 Md.App. 14 , 373 A.2d 19 (1977).

In either case, the cause of the preexisting disability itself and the possible adjudication of its legal consequences will ordinarily both be faits accompli before the subsequent injury even takes place. Not only is the injury or disability an established historic fact, but, more frequently than not, its ²⁴³ final litigation is ordinarily also an already established historic fact when the subsequent event occurs. There is, therefore, a fixed historic context in which the subsequent injury and its litigation may take place. Such a straightforward, linear unfolding of events could have been the case here, but it was not.

The litigation of the 1994 injury, which ordinarily might have preceded the litigation of the 1998 injury by as much as four years, for some reason proceeded simultaneously with it. That scheduling happenstance, however, should not blind us to the proper sequencing of the underlying events themselves. The law may not have memorialized what happened in 1994 until 2003, but the accident itself and its physical consequences were firmly fixed in 1994. Despite an instinctive tendency to look on the jury findings of March 5, 2003, as involving an indivisible entity, the litigational simultaneity of the two claims did not wrap them into a single doctrinal package.

The Focus Is on the SUBSEQUENT Injuiy This ease is controlled by Subsequent Injury Fund law, although the Subsequent Injury Fund itself has, thus far, done little more than hover in the wings. We do not suggest that the Subsequent Injury Fund will necessarily be required to pay compensation to Darden in this case. It may or may not be, depending on the satisfaction of various, yet unlitigated qualifying conditions, such as those spelled out in LE § 9-802(b)(3) and (4). Subsequent injury law focuses on the combined effect of 1) a preexisting permanent impairment and 2) a subsequent injury.

If the combined effect “is substantially greater” than that which would have been caused by the subsequent injury alone, Subsequent Injury Fund law is, at least tentatively, involved. It was the claim for the 1998 injury in this case that triggered the possibility of Subsequent Injury Fund involvement. Subsequent Injury Fund law, the core of which is found in LE § 9-802, has a double thrust. Subsection (b), its various conditions being satisfied, provides compensation to the victim ²⁴⁴ beyond that which is due from the employer.

Subsection (b) provides: (b) Compensation from Subsequent Injury Fund. — In addition to the compensation for which an employer or its insurer is liable, the covered employee is entitled to compensation from the Subsequent Injury Fund if: (1) the covered employee has a permanent impairment due to a previous accident, disease, or congenital condition that is or is likely to be a hindrance or obstacle to the employment of the covered employee; (2) the covered employee suffers a subsequent compensa-ble accidental personal injury, occupational disease, or com-pensable hernia resulting in permanent partial or permanent total disability that is substantially greater due to the combined effects of the previous impairment and the subsequent compensable event than it would have been from the subsequent compensable event alone; (3) the combined effects of the previous impairment and the subsequent accidental personal injury, occupational disease, or compensable hernia result in a permanent disability exceeding 50% of the body as a whole; and (4) the previous impairment, as determined by the Commission at the time of the subsequent compensable event, and the subsequent accidental personal injury, occupational disease, or compensable hernia are each compensable for at least 125 weeks. (Emphasis supplied). Whereas the thrust of subsection (b) is to extend benefits to a covered employee, the counterthrust of subsection (a) is to limit the liability of the employer: (a) Limitation on liability of employer and insurer. — If a covered employee has a permanent impairment and suffers a subsequent accidental personal injury, occupational disease, or compensable hernia resulting in permanent partial or permanent total disability that is substantially greater due to the combined effects of the previous impairment and the subsequent compensable event than it would have ²⁴⁵ been from the subsequent compensable event alone, the employer or its insurer is liable only for the compensation payable under this title for the subsequent accidental personal injury, occupational disease, or compensable hernia. (Emphasis supplied).

Subsection (a), exempting the subsequent employer from any liability beyond that due for the subsequent injury alone, is an absolute. The exemption is not contingent upon compensation’s being recoverable from the Fund. The law does not say that someone is going to pay compensation for the victim’s enhanced disability, and that if the Fund does not, then the employer must. There is no condition limiting the employer’s exemption.

Subsection (a) stands alone. Both subsections, it must be remembered, focus exclusively on the subsequent injury and its deleterious effects. The employer may be liable for its immediate consequences, and the Fund, all conditions being satisfied, may be responsible for its more indirect or incremental consequences. In either event, compensation is for the subsequent injury and for the consequences of that subsequent injury on a victim -with a particular physical condition.

No latter-day compensation is being made for the antecedent injury. The preexisting condition resulting from it is simply the historic backdrop on which the subsequent injury works its impact. This focus is for the obvious reason that subsequent injury law is concerned with the combined effect of a subsequent injury and a preexisting disability. By definition, only a subsequent injury can produce a combined effect.

The prior accident had nothing with which to combine. For these reasons, the focus in this case should have been exclusively on the claim for the 1998 injury. That claim was the claim for the subsequent injury, around which this entire body of law revolves. It alone was the launching pad for any enhanced compensation based upon the combined effect of the preexisting disability and the subsequent injury.

For a combined disability, there must, to be sure, be an apportionment. It is not, however, an apportionment between Claim A and ²⁴⁶ Claim B. It is, rather, an apportionment between 1) the prior existing disability and 2) the subsequent injury, both within the exclusive embrace of Claim B. The Identity of the Earlier Employer Is Immaterial to the Subsequent Injury Litigation The prior disability may have been the result of 1) a congenital condition, Dent v. Cahill, 18 Md.App. 117 , 305 A.2d 233 (1973); 2) an accidental injury that was not compensable, Reliance Insurance Co. v. Watts, 16 Md.App. 71 , 293 A.2d 836 (1972); 3) a work-related injury when working for an employer other than the subsequent employer, Subsequent Injury Fund v. Deeds, 11 Md.App. 335 , 273 A.2d 817 (1971); or 4) a work-related injury when working for the employer who also happens to be the subsequent employer, Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320 , 363 A.2d 505 (1976). What matters is the preexisting disability per se, not responsibility for the disability. Nor is it the case that two discrete injuries fuse into a single unit of compensation liability just because the same employer was, coincidentally, involved on both occasions.

The unit of measurement for compensation purposes is a disability, not an employer. The legal consequences of the 1998 injury in this case would be precisely the same regardless of whether 1) the employer at the time of the earlier injury had been the same, 2) the employer at the earlier time had been different, or 3) there had been no employer involved with the earlier injury. Our concern is with the responsibility of MTA for the consequences to Darden of the subsequent injury in 1998 and with nothing else. "Who, if anyone, the employer happened to have been on the earlier occasion will have no bearing on the litigation following a subsequent injury.

It does not matter who, if anyone, the prior employer may have been for the reason that no compensation will be exacted for the earlier injury. The earlier injury is already history. The earlier disability itself may carry on into the present, but the accident that produced it and the legal liabilities flowing from it do not. ²⁴⁷ In trying to keep the two separate analyses in this case as distinct as possible, it may help if, instead of referring to the MTA as Darden’s generic employer, we refer to Employer A (for 1994’s injury A) and Employer B (for 1998’s injury B). That Employer A and Employer B, by random chance, happen to be one and the same is immaterial to our analysis.

Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320 , 363 A.2d 505 (1976), is instructive. The claimant in that case suffered two separate compensable accidents, one in 1961 and a second in 1966, while working for the same employer. As a consequence of his first accident, the employee suffered a fractured spine and severe injuries to both hands. The Commission, after determining that he had sustained a permanent partial disability, awarded him compensation. 278 Md. at 321 , 363 A.2d 505 .

Whatever the future might hold for the claimant himself, the litigation of that claim was over and done with. A subsequent injury in 1968 produced, as subsequent injuries frequently do, both immediate consequences and a more massive combined effect. Judge Digges, 278 Md. at 321 , 363 A.2d 505 , described the combined effect (80% industrial loss of the use of his body) and the respective percentages by which the subsequent injury (52%) and the prior disability (28%) combined to produce that ultimate (80%) effect. In 1966 the employee was injured in the second accident whereby he suffered a fracture to his left ankle and left shoulder blade.

Following this occurrence, the Commission in 1968 found the claimant was then afflicted with a permanent partial disability amounting to an 80% industrial loss of the use of his body, 28% due to the previous impairment associated with the 1961 accident and 52% due to the 1966 accident. (Emphasis supplied). Significantly, the employer at the time of the 1961 injury (Employer A) was not charged with any of the enhanced compensation due because of the combined effect, even though it was, coincidentally, also the employer at the time of the ²⁴⁸ subsequent injury (Employer B). Any compensation beyond that due for the 1966 injury (Injury B) alone would be borne, if by anyone, by the Subsequent Injury Fund.

The award, made under the “Other Cases” provision of Maryland Code was apportioned between the employer and insurer (the petitioners) and the Subsequent Injury Fund (the respondent), the employer being required to pay 52% and the Fund being responsible, with a credit for the amount previously paid in conjunction with the 1961 accident, for the remaining 28%. 278 Md. at 321-22 , 363 A.2d 505 . The Court of Appeals held flatly that the enhanced compensation for such a cumulative disability is compensation payable by the Fund. [T]he Fund is directed to contribute to the employee’s compensation an amount equal to the difference between the award payable for the subsequent injury alone and that payable for the second injury combined unth the previous impairment. Id. at 325 , 363 A.2d 505 . Even though the disability resulting from the earlier accident was deemed responsible for 28% of the combined and ultimate disability, it was the Fund that was responsible for that 28% of the award, subject to an appropriate credit for any compensation already paid.

Employer A was not responsible for any part of the enhanced award, notwithstanding the coincidental fact that it also happened to be Employer B, the employer at the time of the subsequent injury. The employer at the time of the earlier injury, whoever it may be, is simply not responsible for the consequences, immediate or cumulative, resulting from the subsequent injury. The Claim for the 1994 Injury This case is a textbook example of what not to do. In applying what should have been subsequent injury law, the entire litigation, particularly on the remand to the Commission, allowed its attention to wander away from the subsequent injury and to focus, completely inappropriately, on the ²⁴⁹ prior injury.

The litigation of Darden’s claim for his 1994 injury, ironically, had presented no legal problem. That claim should have been quickly and quietly disposed of. Had that been done, it would have been factored out of the subsequent proceedings. Darden was injured on the job on January 18, 1994.

The Commission found that he had suffered a permanent partial disability under the “other cases” subsection. The Commission awarded him compensation of $170 per week for a period of 215 weeks. Significantly, Darden had no apparent quarrel with that award. There was no reason, therefore, for him to seek judicial review of it by way of his appeal de novo on March 3, 2003.

To be sure, had Darden been trying to establish that his 1994 injuries had caused, for example, a 60% industrial loss of the use of his body rather than the 43% loss found by the Commission, an appeal de novo would have made perfect sense. See Baughman Contracting Co. v. Mellott, 216 Md. 278, 284-86 , 139 A.2d 852 (1958); Ralph v. Sears Roebuck & Co., 102 Md.App. 387, 395-97 , 649 A.2d 1179 (1994). Had he prevailed in such an effort, he would have increased his period of compensation from 215 weeks to 300 weeks. Darden, however, was making no such effort to increase his award for his 1994 injuries.

He had very good reason to appeal the award for his 1998 injury, but he had no reason to appeal his award for the 1994 injury. Although the skimpy record we have of the jury trial of March 3-5, 2003, does not tell us the formal basis for Darden’s seeking judicial review, and does not give us the benefit of any of the trial proceedings, we can infer all we need to know from the list of nine factual issues that were submitted to the jury for its determination. There has been no suggestion that those questions did not embrace every issue with respect to which judicial review had been sought. There was no objection, then or now, to the inclusiveness of that set of issues.

The issues submitted were: 1. Do you find that the Claimant, Percy W. Darden is permanently and totally disabled as a result of the January 18, 1994 injury? ²⁵⁰ Yes_No_ If your answer to No. 1 is YES, stop here. If your answer to No. 1 is NO, proceed to No. 2 2. Do you find that the Claimant, Percy W. Darden, is permanently and totally disabled as a result of the July 9, 1998 injury?

Yes_No_ If your answer to No. 1 is YES, stop here. If your answer to No. 1 is NO, proceed to No. 3. 3. Do you find that the Claimant, Percy W. Darden, is permanently and totally disabled as a result of the combination of the January 18, 1994 injury and July 9, 1998 injury? Yes_No_ If your answer to No. 3 is YES, proceed to No. 4 and No. 5.

If your answer to No. 3 is NO, skip No. 4 & No. 5 and proceed to No. 6 & No. 7. 4. What percentage of Percy W. Darden’s industrial loss of use of body (permanent total disability) do you find as a result of the January 18,1994 injury? _% Proceed to No. 5 5. What percentage of Percy W. Darden’s loss of use of leg (permanent total disability) do you find as a result of the July 9,1998 injury (left knee)? _% Proceed to No. 8 6. What percentage of Percy W. Darden’s industrial loss of use of body (permanent partial disability) do you find as a result of the January 18,1994 injury? _% Proceed to No. 7 ²⁵¹ 7.

What percentage of Percy W. Darden’s loss of use of leg (permanent partial disability) do you find as a result of the July 9, 1998 injury (left knee)? _% Proceed to No. 8 8. What percentage of disability do you find due to preexisting condition(s)? _% Proceed to No. 9 9. Do you find the pre-existing condition(s) a hindrance or likely to be a hindrance to claimant’s employment? Yes_No_ That entire line of questioning concerned exclusively the subsequent injury of 1998, most particularly the combined effect of it and the preexisting disability. “Did the two combine to produce either a permanent total disability or a permanent partial disability?” “In either event, what were the proportionate contributions of 1) the subsequent injury and 2) the preexisting partial disability?” None of the questions concerned the 1994 injury per se nor did those questions seek in any way to recalibrate the compensation for the 1994 claim.

Darden simply did not challenge that award, and its continuing presence in the ongoing proceedings was both completely gratuitous and ultimately distracting. It is obvious that Darden was operating on the erroneous assumption that, in order for the preexisting disability to be considered in conjunction with the subsequent injury, it was somehow necessary for him to appeal his award for the 1994 injury. That, of course, was not the case. The litigation with respect to the subsequent (1998) injury and all of its incremental sequelae could have proceeded just as they did (or should have), even if the 1994 claim had been finally litigated and closed years, or even decades, before.

The de novo jury’s finding that 70% of Darden’s condition as of 1998 was attributable to the disability he had been suffering since 1994 is not the same thing as a finding that he had ²⁵² suffered a 70% loss of the use of his body as of 1994. The latter finding, had it been made (it was not), would have supported an upward adjustment of the award for the 1994 claim. The former finding, the one that was made, would only support an upward adjustment of the award for the 1998 claim. In any event, it is clear that Darden was not seeking judicial review of anything concerning his award for the 1994 injuries per se.

None of the jury’s answers to issues affected the Commission’s award for the 1994 injuries in any way. That award, therefore, should have stood completely undisturbed. Erroneously, however, the circuit court’s order of March 7, 2003, reversed the award for the 1994 injury, as well as the award for the 1998 injury, and remanded both claims to the Commission “for Modified Orders consistent with the verdict of the jury.” The first domino had fallen. Once back before the Commission, the error snowballed.

The only finding made by the jury with respect to the 1994 disability had been made because of the permanent total disability that only came about when the subsequent injury combined with that preexisting disability. Nothing about the prior claim itself was on the table for reconsideration. The earlier disability was simply a part of the historic background on which the subsequent injury operated. As the issues submitted to the jury reflected, there was, very definitely, a potential involvement of the Subsequent Injury Fund.

Accordingly, the jury apportioned responsibility for 1998’s permanent total disability to the subsequent injury (30%) and to the preexisting disability (70%). Pursuant to that apportionment, Employer B would be responsible for 30% of the enhanced compensation and the Fund, at least potentially, would be responsible for the remaining 70% of the compensation, subject to a credit for whatever compensation had already been paid by Employer A on the award for the 1994 claim. LE § 9-804(b); Gray v. Subsequent Injury Fund, 71 Md.App. 656,