Griffin v. Rustless Iron & Steel Co.

Marbury, C. J., delivered the opinion of the Court. Daniel J. W. Griffin, appellant, was employed in the mill of Rustless Iron and Steel Company, appellee, in ⁵²⁶ August, 1939, and was the victim of an explosion there, at that time, by which he was sprayed with a hot lead solution. Some of the lead went into his left eye. He received first aid treatment, including the bandaging of his eye, and then resumed work.

He reported again for treatment three days later, and was then sent to the office of Dr. Buchness, the employer’s doctor. The bandage was taken off his eye, the doctor looked at it, put some salve in it and told him to have it dressed again at the plant dispensary. He had burns on his body, face, neck and arms as well as his eye, and he received medical treatment once or twice a week for all of his injuries until they seemed to be cured. The appellant, however, started to get headaches and his eye commenced to pain.

He went to the doctor and the doctor looked at it with a light and told him that if he had any trouble with it to let him know. That kept up for a year or eighteen months after the accident. Finally, he got tired and told Dr. Buchness that he had to get somebody to look after his eye. The doctor told him to go to a first-class hospital.

He went to the Presbyterian Eye, Ear and Throat Hospital, but they did not treat him. Then the doctor sent him to a specialist, Dr. Anderson. The latter told him he had a film over his eye, that it was not ripe, to come back in nine or twelve months. In twelve months’ time the appellant went back to Dr. Anderson who again said it was not ripe and told him to come back in another nine or twelve months.

The appellant tired of this, and at his request, Dr. Buchness sent him to another specialist, Dr. Tarun. He looked at the eye, put drops in, and on the following day made a thorough examination of both eyes. He also said there was a film over the eye. Dr. Tarun said (according to appellant) that after it got hard, he could get over to the corner of it and pick it off.

The appellant lost no time from work on account of his eye except for these visits to the doctor. He visited Dr. Anderson on July 30, 1941, and his visit to Dr. Tarun was in August, 1941. On cross-examination, the ⁵²⁷ appellant was asked, with reference to this time in 1941, “of course at that time you had no question in your mind that your eye had a defect, did you?” And he answered, “No, sir.” He further said that at that time both doctors told him there was a film, although neither called it a cataract. Appellant worked regularly and continuously from 1939 until 1946, when he retired at the age of 65.

When he was hurt, he was receiving 75 cents an hour and when he retired he was receiving $1.21 an hour. He was a foreman, and his pay was that regularly paid for his job. In April, 1945, the appellant reported for the last time to the company’s dispensary and was examined there by Dr. Wampler. The latter turned on a flash light, looked into appellant’s eye, and told him to come back in six months’ time.

The appellant told him he was getting tired of this “come back business” and was going to take proceedings. He then went of his own accord to Dr. Hurwitz, an eye specialist, who examined him on May 7, 1945. Dr. Hurwitz found that in the left eye there was a dense mature cataract, and that appellant had no vision in that eye except that he could see light. The physician concluded from his examination that appellant had suffered from iritis, at some previous time, because of the atrophy of the tissue, and that his cataract was a secondary cataract.

He said that there was a total loss of vision in the left eye, that a removal of the cataract might be attempted and the appellant might get a good result, but even in that event he would have to have a special heavy lens in order to see. The doctor said that it was possible there was causal connection between the accident of August, 1939, and the present condition. When atrophy of the iris exists, as was found in this case, the normal tissue is displaced by scar tissue. Senile cataracts are prevalent at appellant’s age, but not secondary cataracts which he had.

The appellant had testified that he never had any trouble with his eye until the accident. Both parties have treated the eye trouble as if it were traumatic, so we are not concerned, ⁵²⁸ on this appeal, with any evidence questions in this respect. However, it has been held in compensation cases that lay testimony as to accidents and resulting effects is- at times sufficient to submit a case to a jury. Neeld Construction Co. v. Mason, 157 Md. 571 , 146 A. 748 ; Bethlehem Steel Co. v. Ziegenfuss, 187 Md. 283 , 49 A. 2d 793 ; Cumberland & Allegany Gas Co. v. Caler, 157 Md. 596 , 146 A. 750 .

A claim was filed with the State Industrial Accident Commission on May 10, 1945, and at a hearing on September 27, 1945, the Commission disallowed appellant’s claim on the ground that the condition complained of was not the result of, or caused by, the injury he had suffered in 1939. An appeal was then taken to the Baltimore City Court. There three issues were submitted to the jury. The first was whether the claimant’s condition was caused by the injury.

The second was whether the claimant filed his claim within one year after the beginning of his disability. The third was that if the claimant had not filed his claim within one year after the beginning of his disability, then was his failure induced by or occasioned by fraud or by facts and circumstances amounting to an estoppel. After the testimony was completed, the court below directed the jury that they need not answer the first issue, that they should answer the second issue “No,” and that they should answer the. third issue “No.” As a result of this instructed verdict, the court affirmed the decision of the Commission and gave judgment in favor of the appellee for costs. From these actions the appeal comes here.

Two questions are presented for our consideration, based respectively on the second and third issues before the court. The first is whether appellant’s claim is barred as provided by Code, Article 101, Section 38, as renumbered by Laws 1945, Ch. 528, Sec. 2, because he did not file his claim within one year after the beginning of his disability. The second is based on the assumption that his claim was not so filed, and we are ⁵²⁹ asked to determine whether the failure to file such a claim was induced by facts and circumstances amounting to an estoppel. We have not in the statement of facts touched upon the testimony relied on for the establishment of the estoppel and it is therefore pertinent to mention this testimony at this time.

The appellant said that after he went to Dr. Anderson the first time (which seems from his testimony to have been in 1940) he came back and told Mr. Grundman, the safety engineer of the plant. The appellant, however, places this conversation about 1941. He said Mr. Grundman said, “All right, you just come up as the doctor tells you.” He told Mr. Grundman that Dr. Anderson had told him there was a film over his eye and to come back in nine or twelve months, and Mr. Grundman told him that was “all right, just do that.” Again, in 1944, while appellant was talking to Dr. Wampler, Mr. Grundman came along and the doctor asked Mr. Grundman if the appellant could read. Mr. Grundman replied, “Why certainly he can read.

He can do more than I can do.” With that, appellant told him he was going to take proceedings. Grundman said, “You can’t do that; we are going to look after you.” The appellant testified that Mr. Grundman was the plant safety engineer. After accidents, he looked to see if there could be any remedies to prevent them and if he found any, he suggested them. It was not the practice of the appellant to speak with him about any accidents or injuries sustained in the plant, but he reported to Mr. Grundman in 1941, after his conversation with Dr. Anderson, because it was his order to report.

The company’s physician, Dr. Buchness, continuously treated (or at least examined) appellant’s eye until 1941 when he sent him to two specialists, but such treatment was purely medical and had nothing to do with the legal aspects of any claim against the company. Compare construction Longshoremen’s Act. 33 U. S. C. A., Sec. 901 et seq.; Marshall v Pletz, 317 U. S. 383 , 63 S. Ct. 284 , 87 L. Ed. 348 . The mere fact that appellant was ⁵³⁰ being treated by a physician paid by the appellee would not estop the latter from imposing the defense of limitations to a late claim. The sole basis for estoppel, therefore, are the two conversations appellant had with the plant engineer.

These also both seem to relate only to the medical attention he was to get and not to any financial care. The appellant was working all the time, receiving the normal increases in pay. It is not suggested or intimated that this was in any way due to anything else than his own ability. He was not kept in his position on account of his eye injury, or in spite of it.

From the testimony, the eye injury had nothing to do with his being kept in his position. We recently had occasion to consider the question of estoppel under the Workmen’s Compensation Law in the case of West Virginia Pulp & Paper Co. v. Morton, 185 Md. 623 , 45 A. 2d 725 . In that case a man was injured by chlorine gas in such a way that he could not do his normal work, and the department superintendent told him that the Commission would take care of his claim if any claim was to be filed, and he was kept doing easy work. In that case, we held that, as the superintendent had no authority to make the promise which it was testified he made, and as the claimant knew that another person, representing the employer, took care of compensation matters, the employer was not bound by any such statement and was not estopped from setting up the defense of limitations.

In the case before us it is not only not shown that Mr. Grundman had authority to make any promises relating to compensation or financial settlement, but the only statement that he made possibly susceptible of such a construction was that in 1944, when he was told by the appellant that he was going to take some proceedings. That statement was: “We are going to look after you,” which, made at a conference with the doctor, in our opinion, indicated medical attention and not financial settlement. We are unable to find any of the elements of estoppel in this case, and we think the appellee is ⁵³¹ clearly entitled to raise the defense of limitations if such defense is available. That brings us to the consideration of the first and main question in the case, whether the appellant filed his claim within one year after his disability occurred.

It is provided by Article 101, Section 38, of the Annotated Code, as renumbered by Laws 1945, Ch. 528, Sec. 2, that “failure of an employee to file a claim for compensation within one year after the beginning of his disability shall constitute a complete bar to any claim under this Article,” unless there is fraud or estoppel, the first of which is not claimed and the last we have found not to exist in this case. The appellees find much meaning in the word “beginning,” contending that this indicates the commencement of any disability compensable under the Act. That is, disability generally, and not the particular class of disability for which compensation is asked. There are four different classes of disability for which compensation is allowed, namely: temporary partial disability, temporary total disability, permanent partial disability, and permanent total disability.

These four have been held to have four different compensable results. Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71 , 12 A 2d. 525; Jackson v. Bethlehem-Fairfield Shipyard, 185 Md. 335 , 44 A. 2d 811 . And the right to file a claim does not depend in this State upon whether the claimant lost any wages. It can be based upon a loss of function which may be a deterrent from or a denial of future promotion or future employment.

Jirout v. Gebelein, 142 Md. 692 , 121 A. 831 ; Baltimore Pub. Co. v. Hendricks, 156 Md. 74 , 143 A. 654 ; Baltimore Tube Co. v. Dove, 164 Md. 87 , 164 A. 161 ; Strange v. Federal Land Bank, 207 La. 17 , 20 So. 2d 410 . The disability claimed in the present case is a permanent total disability, and it was not apparent to the appellant or to any doctor, so far as the record shows, that he would have this kind of disability until the examination made by Dr. Hurwitz on May 7, 1945. How ⁵³² ever, it has been held that the fact that a claimant does not know the extent or nature of his injury from a medical standpoint does not excuse him from filing a claim if he knows he has some sort of disability resulting from the accident.

Cleveland v. Laclede Christy Clay Products Co., Mo. App., 129 S. W. 2d 12 ; Connolly v. Penn Seaboard Steel Corp., 100 Conn. 423 , 123 A. 906 ; Liberty Mutual Ins. Co. v. Parker, D. C., 19 F. Supp. 686 . And if the injury is latent, the time does not begin to. run until the injury becomes apparent.

Kropp v. Parker, D. C., 8 F. Supp. 290 ; Di Giorgio Fruit Corp. v. Norton, 3 Cir., 93 F. 2d 119 ; Baltimore Steel Co. v. Burch, 187 Md. 209 , 49 A. 2d 542 . Compare Kobilkin v. Pillsbury, 9 Cir., 103 F. 2d 667 . The weight of authority is that where a statute requires a claim to be filed from the date of an injury, that means compensable injury, and, for all practical effects, is the same as disability. See cases collected in Baltimore Steel Co. v. Burch, supra.

Cases in states where there is such a statute are in point in a discussion of the statute here which uses the word “disability.” Indiana is one of these states. The statute there requires the application for compensation to be filed “within two [2] years after the injury.” Burns’ Ann. St., 1933, Sec. 40-1224. On April 14, 1931, a foreign substance lodged in a claimant’s eye and was removed by a company doctor. No time was lost from work and two days later the doctor found the eye to be all right.

There was a gradual loss of vision, but the doctor did not see the claimant until December 1, 1933, when he found the eye had light perception only. On December 18, 1933, claimant' became permanently and totally blind in that eye, and on July 30, 1935, the claim for compensation for permanent disability was filed. The claimant testified that six months after the accident he could not read the headlines in a newspaper and, about a year after, he could see a face only when it was clo'se to him. Nevertheless, the court held that as the claim was for permanent disability, due to a total loss of sight, “A claim ⁵³³ therefore would not have been allowed until after appellee sustained such loss of vision, to wit, until after December 1, 1933 * * * and hence the statute barring the right to compensation after two years after the injury did not begin to run until after December 1, 1933.” Muehlhausen Spring Co. v. Szewczyk, 104 Ind.

App 161, 8 N. E. 2d 104, 106 . In Michigan, where there is a somewhat complicated limitation statute (2 Comp. Laws 1929, Sec. 8431), in a case beclouded by an issue of estoppel, the claimant claimed the loss of an eye. The statute provided a schedule award for such a loss and the court said such a claim was distinct from a claim for disability not resulting from a loss of a member and that the claimant “could not claim the schedule compensation for ‘loss of an eye’ so long as he had protective or peripheral vision which to him was useful industrial vision.” His accident was in December, 1930.

In October, 1931, he complained he was losing his sight. In 1935, he consulted a specialist to whom he was sent by the company five times. His eye became absolutely blind October 1, 1937, and the court held that the resulting disability began October 1, 1937. Henderson v. Consumers Power Co., 1942, 301 Mich. 564 , 4 N. W. 2d 10, 17 .

In New Mexico, a workman was struck in the eye by a piece of steel on November 9, 1940. In April, 1941, his sight was becoming weaker and he went to an optometrist, was fitted for glasses, but was not advised of any defect in his eye. He had a check-up from the optometrist in April, 1942, but it was not until December, 1942, that he was advised by a physician that he had a total loss of vision in one eye. He filed his claim in January, 1943.

The court said that the New Mexico limitations statute of one year (New Mex. Stat, Ann. 1941, Sec. 57-913) began to operate from the time of employer’s failure to pay compensation when the disability can be ascertained, and the duty to pay arises. The point was stressed that the claimant himself must have knowledge or reasonable cause to know of the disability. ⁵³⁴ It was held that the claimant did not know this until he had consulted a physician and his claim was filed in time. Anderson v. Contract Trucking Co., 48 N. M. 158, 146 P. 2d 873 .

In Washington, the statute formerly provided that no