Gray v. Subsequent Injury Fund

GILBERT, Chief Judge. No one disputes that John M. Gray is totally and permanently disabled within the meaning of the Maryland Workmen’s Compensation Act. No one disputes that Mr. Gray sustained an accidental injury in October 1978 and that, as a result, 40 percent of the 100 percent total permanent disability is attributable to that particular accident. No one disputes that Mr. Gray’s employer, Mass Transit Administration, is responsible for the payment of $13,600. 1 No one disputes that Mr. Gray also suffers from asthma, loss of vision in his right eye, hypertension and “type II Diabetes mellitus and chronic bronchitis and associated emphysema.” No one disputes that Mr. Gray received prior workmen’s compensation awards for injury in March 1973 to his back.

(settled for $2,500), injury in November 1973 to his knee ⁶⁵⁸ (settled for $1,050), and an injury in May 1977 to his back (settled for $12,000), or that the total settlements amount to $15,550. No one disputes that the maximum amount payable for total permanent disability should not exceed $45,000. 2 What is disputed is the Commission’s order that the Subsequent Injury Fund pay to Mr. Gray the sum of “$31,400 representing the compensation payable for the pre-existing condition” without allowing the Fund credit for the $15,550 previously paid under the 1973 and 1977 awards. The refusal of the Commission to allow the Fund credit against the permanent total award in favor of Mr. Gray led the Fund to the Circuit Court for Baltimore City. There the Fund moved for summary judgment on the ground that, as a matter of law, it was entitled to credit of $15,550 because of Mr. Gray’s prior awards.

Judge Thomas Ward granted the Fund’s motion. Obviously dissatisfied with that turn of events, Mr. Gray has journeyed to this Court where he asserts that the hearing judge was incorrect. The Subsequent Injury Fund was created by Md.Ann. Code art. 101, § 66. The avowed purpose of the statute is declared in § 66(1) to be “to make the total payments to which ... [an] employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury.” The Fund, in the words of Subsequent Injury Fund v. Pack, 250 Md. 306, 308 , 242 A.2d 506 (1968), was established “to persuade the employer to employ the handicapped individual by limiting the liability, which the employer . may otherwise have incurred, in the event the previously ⁶⁵⁹ disabled or injured individual sustained a subsequent occupational injury, although not of itself disabling, but which, coupled with previous impairment, rendered the individual permanently disabled, thus exposing the employer to liability for the cumulative effect of the prior and subsequent injuries.” To assure itself that an employee would not be compensated twice for the same injury, the Legislature commanded that “[i]n making any award from the fund for a subsequent injury, the Commission shall consider any prior award made by the Commission ... in determining the amount to be awarded for such subsequent injury.” Md.Ann.Code art. 101, § 66(5).

This Court applied that subsection in Subsequent Injury Fund v. Chapman, 11 Md.App. 369 , 274 A.2d 870 (1971), where we approved of the Fund’s being entitled to a credit of $9,075 against an award of $19,500. The $9,075 had been paid to Chapman as a result of previously incurred permanent partial disability awards. Later in Subsequent Injury Fund v. Slater, 27 Md.App. 295 , 340 A.2d 405 (1975), the Court considered whether a disability payment received from the Department of the Navy was a prior award within the meaning of Md.Ann. Code art. 101, § 66(5). Speaking through Judge Menchine, we concluded that the language of § 66(5) did not embrace “Acts of Congress.” We said that “disability retirement benefits [paid] to members of the Armed Forces of the United States, were not intended ... to be equated with a ‘prior award made by’ ” a Workmen’s Compensation Commission in this