Department of Correction v. Johnson

Henderson, J., filed the following dissenting opinion. The appellee sustained injuries resulting in the loss of the terminal phalanx of both thumbs. The Commission held that these injuries were not within the schedule of specific injuries set forth in section 36, subsection (3) of the Compensation Act, but fell within subsection (4), which sets up a different measure of recovery for “all other cases of disability, other than those specifically enumerated disabilities set forth in subsection (3)”. On this basis, the Commission’s award was more than twice as great as the sum of the scheduled amounts for the two specific injuries.

This Court approved the Commission’s construction of the statute. I think such a construction is strained and untenable. To my mind, the references in subsection (3) to a thumb, a finger, or a toe were intended to establish a unit price or rate and to limit recovery in the case of each member, to a fixed number of weeks, multiplied by a fixed percentage of the average weekly wage. Specific provision is made for the loss of a first phalanx, for more than one phalanx of a digit of a hand, and for multiple injuries to parts of a hand.

Funk and Wagnall’s Dictionary (1949 ed.) notes the use of the indefinite article “a” in such phrases as “one dollar a bushel, with the distributive sense of each, and equivalent to per”. The Oxford English Dictionary notes its use as “denoting the proportion of one thing to another” as in “a penny a day”. It is unnecessary to invoke the rule of construction stated in Code (1957), Art. 1, sec. 8, that the singular includes the plural, and vice versa, although this section is clearly applicable to Art. 101, and this Court has so held. Wheeler v. Rhoten, 144 Md. 10, 12 .

I think the distributive sense is implicit in the language employed. That this was the legislative meaning is suggested by the fact that subsection (3) (b) contains the clause “For the total loss of hearing of one ear, seventy-five weeks; for the total loss of hearing of both ears, one hundred and seventy-five ¹⁵¹ weeks.” Evidently the legislature thought that the loss of hearing in both ears was worth more than the sum of the loss of hearing in each ear, and increased the award by twenty-five weeks. If the dual or multiple loss would have automatically brought the case under “other cases”, and permitted an award based on a percentage of total disability, there would have been no point in adopting the language quoted. If it be thought harsh to impose a price tag upon human injuries, we must remember that the primary purpose of the Compensation Act, first adopted in 1914, was to substitute for the employer’s common-law liability for negligence, subject to his common-law defenses, an absolute but limited liability regardless of fault.

Cox v. Sandler’s, Inc., 209 Md. 193, 198 . The scheduling of injuries, so far as practicable, was an essential part of the insurance scheme, designed to substitute certainty for uncertainty. It is not without significance that most of the cases arising under “other cases” have been back injuries, or injuries to the internal organs, where the schedule could not possibly apply. “Other cases” would seem to import cases not mentioned at all in the schedule of specific injuries. I find no support for the Court’s conclusion in the prior decisions of this Court, but quite the contrary.

In Congoleum Nairn v. Brown, 158 Md. 285 , the claimant lost several fingers of the right hand in an accident, and had lost several fingers of the left hand in a prior accident. It was not contended that “other cases” was applicable. The contentions were that the loss in the current accident should be calculated in terms of the loss of use of the right hand, rather than as the sum of the loss of the fingers, and that the loss of both hands amounted to total, rather than partial, disability, under the precise terms of the statute. In Lisowsky v. White, 177 Md. 377, the claimant had lost three fingers of one hand.

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