Duncan v. McNitt Coal Co.

Bruñe, C. J., delivered the opinion of the Court. The claimant, George Duncan, appeals from an order of the Circuit Court for Allegany County affirming a decision of the State Industrial Accident Commission (the “Commission”) which disallowed a claim under the Workmen’s Compensation Act for disability alleged to have been caused by an occupational disease, silicosis. The appellees are the appellant’s employer, The McNitt Coal Company, and the State Accident Insurance Fund, the insurer. The claimant was employed for forty years as a miner mostly by The McNitt Coal Company, but at times by other coal mining companies.

During this period his work included digging coal, “shooting” rock and sanding rails. His working environment was extremely dusty, and he believed that the ³⁹⁰ dust to which he was exposed consisted largely of sand. He stopped work on June 24, 1955. Five or six years previously he noticed shortness of breath, which gradually became worse and towards the end of his working career he developed a cough, which caused him to spit black or yellow phlegm (from coal or sand dust, he supposed).

His weight declined from about 220 to about 185 pounds. The claimant first consulted a physician, Dr. Devers, on or about June 6, 1955. Dr. Devers examined him and suggested that he have an x-ray of his lungs made by the Allegany County Health Department, which was done on June 8th, at the Miners Hospital, Frostburg. The report of the County Health Officer, dated September 19, 1955, shows a negative tuberculin test and reports the examination of the x-ray taken on June 8, 1955, No. 15749, with the comments “Slight fibrosis throughout both lungs.

Cardiac shadow normal.” It seems (though it is not directly stated) that Dr. Devers examined this x-ray at about the time it was made and that on the basis of that x-ray and of physical examinations of Mr. Duncan on June 10th and 13th, Dr. Devers advised Mr. Duncan that he had silicosis and Mr. Duncan’s claim was filed before the end of June. Dr. Devers continued to see Mr. Duncan during the summer and prescribed some treatments for him, which produced little effect. At Dr. Devers’ suggestion, Mr. Duncan underwent various tests at the Sacred Heart Hospital in Cumberland, and an electrocardiogram was made during those tests on July 7, 1955. This was interpreted by Dr. Weisman, and his views were stated in Dr. Devers’ testimony.

Dr. Weisman’s conclusion was that it was an abnormal electrocardiogram; his interpretation was as follows: “Low T waves are due to a vertical heart position and myocardial damage is probably present. Pulmonary heart disease cannot be supported or ruled out by this electrocardiogram.” Other tests were also made at this time and their results were fully reported to the Medical Board by Dr. Devers at a hearing on Mr. Duncan’s claim held on September 28, 1955. At that hearing Dr. Devers ³⁹¹ explained that the low T waves commented upon by Dr. Weisman were due to a fact which was not known to Dr. Weisman, that Mr. Duncan was “decompensating” because of cor pulmonale, also known as right-sided heart disease. Dr. Devers commented that the electrocardiogram indicated that myocardial damage was probably, but not surely, present, and he dismissed the cardiogram with the statement that “I think anything you can say for [the] electrocardiogram is that it doesn’t help at all.” A second x-ray of Mr. Duncan was taken at the Miners Hospital on July 19, 1955 (designated as Film No. 1704).

This was read by Dr. W. O. McLane of Frostburg, who appears to have been recognized as an expert. His final interpretation was “early silicosis”, as Dr. Devers stated in his testimony at the hearing before the Medical Board. That hearing was held at the request of the insurer and of the claimant. The first and only specific issue upon which the matter was originally referred to the Medical Board, and the only one now important (others raised at the hearing not having been passed upon because of the decision on the first issue), was this: “Whether the claimant contracted an occupational disease within the meaning and terms of the Occupational Disease Law.” Witnesses at the hearing were the claimant and Dr. Devers.

No medical (or other) testimony was offered by the insurer. Dr. Devers was questioned extensively by members of the Medical Board with regard to the basis for his opinion that the claimant had silicosis. The Medical Board answered the first issue, “No.” Its conclusion was contrary to that of Dr. Devers. Its report reflects consideration of what Dr. Devers had observed during his examination of the claimant, of the results of the hospital tests, and of the x-rays.

The report stated in part: “The Medical Board examined x-rays submitted as evidence and interpreted them as follows: Film 1704, Miners Hospital, Frostburg, shows the lungs are clear; cardiovascular and other mediastinal structures appear normal. Film 15749, taken 6/8/55 by the Allegany County Health Department, shows the lungs ³⁹² are clear; cardiovascular and other mediastinal structures appear normal. “It is the opinion of the Board that this patient is suffering from arteriosclerotic heart disease which is not related to his occupation. This opinion is based upon the history, clinical and laboratory findings in association with negative x-ray study of the chest. The Board has considered the fact that this man has worked as a miner most of his adult life.

However, there is no evidence to indicate his disease is due to silicosis.” At an earlier point in its report the Medical Board also stated: “Dr. Devers felt that the patient’s symptoms were due to silicosis and myocardial failure, the latter on a basis of arteriosclerosis.” The last portion of this statement appears to be erroneous, for Dr. Devers’ testimony was to the effect that he considered the myocardial failure a result of cor pulmonale which, in turn, he ascribed to silicosis. The claimant sought a review of the findings of the Medical Board by the Commission, and after a hearing the Commission affirmed the decision of the Board and disallowed the claim. The decision of the Commission was affirmed by the Circuit Court for Allegany County. On the appeal to the Circuit Court and on the appeal to this Court the principal question presented is whether or not the Medical Board may apply its own expert knowledge and experience to the evidence before it, including x-rays, in determining whether or not the claimant is suffering from an occupational disease, and may make findings contrary to the express opinion of the only medical witness testifying before the Board.

Occupational diseases were first made compensable under the Workmen’s Compensation Act by Chapter 465 of the Acts of 1939. That statute provided (inter alia) for the establishment of a Medical Board and prescribed its powers and duties. Then, as now (Code, 1951, Article 101, Section 26 (a)), the Medical Board was (and is) to consist of three members appointed by the Governor from lists of nominees submitted ³⁹³ by the respective Deans of the medical departments of the University of Maryland and of the Johns Hopkins University and by the council of the Medical and Chirurgical Faculty of Maryland. Two of the members must have had at least five years’ practice in the diagnosis, treatment and care of industrial diseases, and one must be especially trained in roentgenology, with at least five years’ practice and experience.

Under Section 27 of Article 101 of the Code of 1951 (to which Article subsequent references merely to Sections will refer, unless otherwise specified), the Commission is directed to refer “every claim for compensation for an occupational disease to the Medical Board for investigation, hearing and report, excepting, however, such cases wherein there are no controverted medical issues”; and the Commission is not permitted to make an award “in any such case until the Medical Board shall have duly investigated and heard the case and made its report and its decisions with respect to all medical questions at issue.” Section 27 also provides, among other things, for notice of a hearing before the Medical Board and that at “such hearing either party may offer testimony of such witnesses as they may desire, which shall become a part of the record of the proceedings before the Medical Board.” There are also provisions for the appearance of the claimant and for his submission to such examinations, including clinical and x-ray examinations, as the Medical Board may require and for the presence at and participation in any such examinations of physicians representing the claimant, the employer and the insurer, respectively. No new examination was required by the Medical Board in the instant case, and reports of clinical and x-ray examinations were those already made as to which Dr. Devers testified and as to which he was questioned by members of the Board. The concluding paragraph of Section 27 requires, inter alia, that the “Medical Board shall, as soon as practicable after it has completed its consideration of the case, report in writing its findings and conclusions on every medical question in controversy” and that it “shall also include in its report a statement indicating the physician or physicians, if any, who ap ³⁹⁴ peared before it, and what, if any, medical reports and X-rays were considered by it.” The first paragraph of Section 28 further requires the Medical Board to file with the Commission the record of all proceedings before the Board, including the transcript of the testimony of all witnesses. Section 28 of Article 101, as amended by Chapter 82 of the Acts of 1955, also makes provision for review of the proceedings and decision of the Medical Board by the Commission.

It provides in part: “In the event that a petition for review by the State Industrial Accident Commission of the findings and report of the medical board has been filed, * * * the State Industrial Accident Commission shall review the proceedings, findings and report of the medical board, and upon the record thus made shall render its decision or award * * *.” From June 1, 1939, until June 1, 1951, this sentence in .the corresponding Section (numbered 42) of the 1939 Code read (apart from capitalization) just as it now does. From June 1, 1951, until June 1, 1955, a proviso was attached to this sentence which read as follows: “provided, however, that upon such review the findings of the Medical Board upon all medical questions shall be presumed to be correct and such findings shall not be set aside or reversed if there is legally sufficient evidence in the record to support such findings.” This was eliminated by Chapter 82 of the Acts of 1955. Most of the rules of law applicable to this case have been set forth in Big Savage Refractories Corp. v. Geary, 209 Md. 362 , 121 A. 2d 212 , decided in 1956, in which Judge Collins carefully reviewed a number of prior decisions of this Court. It seems useless to repeat here to any great extent what was well said there.

That case arose while the proviso giving great effect to the findings of the Medical Board was in force, and it was decided thereunder. The opinion pointed out that since the effective date of Chapter 82 of the Acts of 1955, the law with regard to the determination of facts in cases involving occupational diseases has been restored to what it was prior to June 1, 1951, and what it was when Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147 , 55 A. 2d 507 , and Consolidation Coal Co. v. Porter, 192 Md. 494, 64 A. 2d 715 , were decided. ³⁹⁵ Under Section 28 of Article 101 of the Code, the Commission, on a petition for review, “shall review the proceedings, findings and report of the Medical Board, and upon the record thus made shall render its decision or award upon all issues referred to the Medical Board.” Then follows a provision, which is substantially duplicated by a proviso contained in what is now Section 57 of the same Article to the effect that findings of fact by the Commission in cases involving occupational diseases are not to be set aside, reversed or modified on review in the courts. Notwithstanding the finality which these statutes seek to confer upon such findings of the Commission, they are subject to review if not supported by substantial or legally sufficient evidence (both terms being found in the cases), and the existence of such evidence is a question of law. Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467 , 84 A. 2d 847 ; Big Savage Refractories Corp v. Geary, supra; Moore v. Clarke, 171 Md. 39 , 187 A. 887 ; Kelly-Springfield Tire Co. v. Roland, 197 Md. 354 , 79 A. 2d 153 ; Note, 13 Md. Law Rev. 337.

See also Lloyd E. Mitchell, Inc. v. Md. Employment Security Bd., 209 Md. 237 , 121 A. 2d 198 , involving similar provisions of the Unemployment Compensation Act (Code, 1951, Article 95A, Section 6 (h)). In Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, supra, this Court said: “The Commission has the power to review findings of the Medical Board. Finality, in so far as the legislature can make final the decision of an administrative tribunal, attaches to the decision of the Commission, not to the decision of the Medical Board.” ( 189 Md. at 154 , 55 A. 2d at 511 .) The review of the origin and legislative history of Chapter 465 of Acts of 1939 set forth in Judge Henderson’s opinion in Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, supra, is pertinent here. His view there stated is reinforced by the 1951 and 1955 changes which, respectively, first inserted and later removed the proviso in Section 28 which gave added force to the findings of the Medical Board; and it is clearly the decision of the Commission, not of the Medical Board, which is now under review.

However, since the Commission’s finding in this case is explicitly based upon the findings of the Board, if there was no ³⁹⁶ legally adequate foundation for the Board’s findings, such an infirmity would doubtless vitiate the Commission’s findings as well. What, then, is the position of the Medical Board? Is it an investigator and advisor for the Commission in the field of occupational diseases, or is it merely an umpire in case of a dispute between medical experts? The need for expert medical advice in passing upon the existence and extent of occupational diseases seems clear, and we think that the pertinent statutory provisions indicate that the