Dennison v. Head Construction Co.

Liss, J., delivered the opinion of the Court. On June 3, 1965, the appellant, Clifford Dennison, sustained an accidental injury to the lumbar region of his lower back, which arose out of and in the course of his employment with the appellee, Head Construction Company. 1 On April 6, 1966, the Workmen’s Compensation Commission (hereinafter "the Commission”) found that as a result of the accident, appellant was entitled to benefits for a 50% permanent partial disability, 25% attributable to the 1965 accident and 25% due to a pre-existing condition. The claimant appealed the Commission’s award to the Circuit Court for Charles County, which after a jury trial affirmed the award of the Commission. During the ensuing ten years, appellant experienced numerous problems with his back requiring constant medical treatment as well as numerous hospitalizations for his condition.

The medical treatment of the claimant included the installation and subsequent removal of a plate in his back. Due to the problems he was experiencing, on November 18, 1970, the Commission found the appellant to have been rendered temporarily totally disabled for an additional ³¹² period of time and ordered the appellees to pay claimant further benefits for additional temporary total disability. On June 8,1976, the appellant filed with the Commission, pursuant to Maryland Code (1957, 1979 Repl. Vol.), Article 101, § 40 (c) a petition to reopen the nature and extent portion of the Commission’s 1966 award due to the worsening of his condition.

During the interim period between the filing of issues by the appellant in 1976, and the hearings on the claim of worsening in 1980 and 1981, appellant incurred a separate and distinct injury to the thoracic region of his body, which also affected his lower back. This injury occurred in the District of Columbia on August 21,1976 and arose out of and in the course of his employment with Traylor S & M, a District of Columbia construction company. As a result of this later injury, the appellant after a hearing was found to be permanently and totally disabled by the U.S. Department of Labor Office of Workers’ Compensation Programs and appropriate benefits were awarded on October 23, 1979, pursuant to 33 U.S.C., § 908 (f) (1) of the Longshoremen and Harbor Workers’ Compensation Act which had been adopted by the Congress as the District of Columbia Workers’ Compensation Act. The Deputy Commissioner made the following pertinent findings of fact: 5.

That the claimant suffered from existing permanent partial disability resulting from at least six prior surgical procedures in the form of laminectomy and spinal arthrodesis to his back, all of which were precipitated by an industrial injury sustained in 1963; that the employer had actual knowledge of the existing permanent partial disability of the claimant due to his continued employment with this same employer; 2 6. That the claimant’s pre-existing permanent partial disability, when combined with the injury of August 21, 1976, has resulted in permanent and total disability; ³¹³ 7. That the claimant’s permanent total disability following his injury of August 21,1976, was not due solely to his injury on that date, but was due in substantial part to his pre-existing permanent partial impairment. By the terms of the award as required by § 908 (f) (2) of the Act, Traylor S & M’s insurance carrier was ordered to make weekly compensation payments for the period from February 28, 1978, to February 25, 1980, with payments thereafter to be made by the Department of Labor.

The weekly benefits and the total compensation payable were substantially greater under the District of Columbia’s program than those payable under the Maryland statute. On October 27, 1980, the Commission held that appellant’s worsening of condition was not causally related to his accidental injury of 1965. Subsequent to a rehearing that order was affirmed by the Commission on August 3, 1981. On August 6, 1981, the appellant filed an appeal to the Circuit Court for Charles County on the issue of whether the Commission was correct in finding that his present worsening of condition was not causally related to the accidental injury of June 3, 1965.

On May 6, 1982, the appellee filed a motion for summary judgment on the ground that there did not exist a genuine question of material fact as to whether the appellant’s worsening of condition was causally related to his accidental injury in 1965. Appellee further contended that even if such a question of fact did exist, the appellee was no longer responsible for such additional permanent partial disability benefits attributable to the worsening of condition due to the fact that the Office of Workers’ Compensation Programs of Washington, D.C. had found appellant permanently totally disabled as a result of a pre-existing permanent partial disability and injuries sustained from the accident of August 21,1976. A hearing was held on May 21,1982, in the Circuit Court for Charles County. The trial judge ruled that although there was sufficient evidence in the record, based ³¹⁴ upon the medical reports, the testimony presented, and any additional evidence which might be produced at trial, upon which a trier of fact could find that appellant’s worsening was causally related to the 1965 injury, the appellee was no longer obligated to make such payments to appellant for the worsening due to the District of Columbia’s ruling that the appellant was permanently and totally disabled, notwithstanding that the District .of Columbia award involved a different employer and insurer, as well as a different injury.

Appellant then filed this appeal, raising the following issues to be determined by this Court: I. Whether a claimant is precluded as a matter of law from receiving workmen’s compensation benefits simultaneously for loss of wage earning capacity from two different employers arising from two separate accidents where the loss of wage earning capacity is predicated upon the same anatomical disability?

II

Whether the collateral source rule applies to workmen’s compensation cases? I. Appellant argues that it is more equitable to allow an injured employee, who is permanently totally disabled, and who has been paid for a pre-existing injury arising in a foreign jurisdiction, to receive the benefit of recovering for an amount greater than 100% of loss, rather than to allow the benefit to inure to the employer and insurer, who would be excused from the responsibility for the payment of benefits because the employee was subsequently injured while working for a different employer-insurer. Appellee contends that appellant seeks compensation for his alleged worsening of condition pursuant to Maryland Code (1957, 1979 Repl. Vol.), Article 101, § 36 (4).

That provision allows compensation to claimants for disability other than those scheduled disabilities enumerated in Article 101, § 36 (3) of the Code. Disability under § 36 (4) ³¹⁵ refers to loss of wage earning capacity, i.e., the employee’s ability to earn wages after the accident. Miller v. James McGraw Co., 184 Md. 529 , 42 A.2d 237 (1945); Giant Food, Inc. v. Coffey, 52 Md. App. 572 , 451 A.2d 151 (1982). It is appellee’s position that the appellant’s alleged worsening of condition is being paid for by the benefits allowed under the District of Columbia award and that an additional award for the same condition is not contemplated or permissible under the Maryland statute.

Appellant maintains that he is not receiving the same benefits under the District of Columbia Act that he is entitled to receive for his alleged worsening of condition in Maryland. He further alleges that there is no evidence that the District’s special Fund administered by the Department of Labor is paying for appellant’s worsening of condition. The record discloses that appellant is receiving much more under the District of Columbia Act than he would be entitled to receive from the appellees in Maryland under Article 101, § 36 (4) (a). The District of Columbia’s award specifically indicated that it was based, at least in part, on injuries sustained by the appellant as far back as 1963; and that the award of permanent total disability was based not only on the injury in the District which occurred in 1976, but "in substantial part on his pre-existing permanent partial disability.” It is significant that appellant and his counsel in the District of Columbia proceeding entered into a stipulation which stated in pertinent part as follows: [I]t is further stipulated, and the medical reports show, that since 1963, the patient has had at least six surgical procedures in the form of laminotomy and spinal arthrodesis all of which was precipitated by an industrial injury sustained in 1963 when a foot ladder fell on him.

The patient has residual disabilities from this accident and was not free from symptoms. It is further stipulated that on May 8, 1978 the attending physician, Guillermo E. Sanchez, M.D. stated: ³¹⁶ "Clifford Dennison is no longer having problems related to the injury sustained on the 21st of August, 1976 (compression of T-10) in my opinion. Most of his problems are related to the previous pre-existing injury.” Under the circumstances it is clear to us that the appellant has in fact been receiving benefits from the District of Columbia award which encompassed any worsening of his condition attributable to the 1963 injury. Appellant argues that even assuming, arguendo, that the Department of Labor is paying for the worsening of condition, appellee’s argument that an individual cannot be more than 100% disabled is erroneous.

To support that contention appellant relies on Subsequent Injury Fund v. Compton, 28 Md. App. 526 , 346 A.2d 475 (1975), aff'd sub. nom., Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320 , 363 A.2d 505 (1976), where the Court of Appeals stated: ... it is reasonable for the statute to hold the employer liable for the full effects of the compensable injury notwithstanding the fact that a previous impairment existed at the time of the subsequent accident.... Although this makes it possible for this claimant to be suffering a theoretical total of 128% disability, such a result is not illogical in this area of the law. [Id., at 328-329], . The appellant, however, misreads the significance of Subsequent Injury Fund v. Compton, supra. In that case we referred to Congoleum Nairn, Inc. v. Brown, 158 Md. 285 , 148 A.2d 220 (1930), as ".. . authority for the proposition that a previous accident resulting in permanent partial disability ... does not preclude the Commission from finding that permanent total disability may be attributed solely to a 'current injury’.” In affirming Compton , the Court of Appeals adopted the reasoning of Judge Melvin of this Court [ 28 Md. App. at 532 ], and stated: ³¹⁷ In the context of the Workmen’s Compensation Law, if one suffers injuries resulting in permanent partial disability of a member of his body or of his body as a whole, it does not necessarily follow that a subsequent injury cannot result in his total and permanent disability without attributing that result to the prior injuries to any substantial degree or to any extent at all.. .. [ 278 Md. at 329 ].

See Giant Food, Inc. v. Coffey, supra; Vinci v. Allied Research Associates,