Maizel v. Maizel & Shapiro Enterprises, Inc.

Gilbert, J., delivered the opinion of the Court. Louis Maizel, on April 15, 1970, sustained an accidental injury arising out of and in the course of his employment with Maizel & Shapiro Enterprises, Inc., and Maizel filed a claim with the Workmen’s Compensation Commission. The Commission passed an order on August 30, 1970 in which it determined the accidental injury and awarded payment for temporary total disability to Maizel. On July 16, 1971 the Commission, “after further consideration”, by a “Supplemental Award” held that Maizel had sustained a permanent partial disability of 35% of his back under “Other Cases.” The employer’s insurance carrier was instructed to pay to Maizel the sum of $4,375 at the rate of $25 per week.

A little over a year later Maizel requested a rehearing. For reasons not pertinent to this discussion, the matter was not heard until November 1973. As a result of the rehearing the Commission held that Maizel was disabled to the extent of 45% of his back. Then Md. Ann. Code art. 101, § 36 (4a) provided: 1 “A person who receives under subsection (4) of this section an award equal to forty per centum or more of $12,500 is thereby considered to have a serious disability.

He automatically shall be ³ entitled to (in addition to an award under subsection (4)) an extra award of a number of weeks equal to one-third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. This subsection, to the extent of any inconsistency, prevails over subsection (4); hjit otherwise subsection (4) applies to persons covered by this subsection. Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and paid.” (Emphasis supplied). Applying § 36 (4a) to the case before it, the Commission ordered that Maizel be paid compensation for a period of 300 weeks at the rate of $40 per week “subject to a credit for 80 weeks” that have been paid in accordance with the order of July 16,1971.

Maizel was aggrieved. He appealed to the Circuit Court for Prince George’s County where he argued to Judge Robert B. Mathias that the effect of the Commission’s order was to deprive Maizel of the difference, for 80 weeks, between the $40 weekly compensation payable for serious disability and the $25 per week he had been receiving. In short, Maizel said he was deprived of $1,200. Maizel asseverated in the Circuit Court and again here that the above quoted italicized portion of § 36 (4a) is unconstitutional in that there is a denial of equal protection of the laws.

Alternatively, he avers that the construction placed by the Commission upon that section, if it be constitutional, is incorrect. Judge Mathias disagreed with Maizel’s contentions, and we agree with Judge Mathias. The gist of Maizel’s equal protection argument, stripped of its veneer, is that had he not filed a claim shortly after the happening of the accident of April 15, 1970, and instead waited until July 1971 when his condition had apparently ⁴ worsened, he would have received, as a result of his waiting, the additional fifteen dollars a week for 80 weeks. Maizel poses the hypothetical situation wherein two people, “A” and “B”, are injured in the same manner, to the same extent and on the same day. “A” files a claim for compensation forthwith but “B” waits.

At the time of his hearing “A” has reached maximum improvement. He is determined to have sustained a 35% permanent disability of his back. Later his condition becomes worse and as a result of a petition to reopen he is awarded another 10% disability. As the law then read 2 he would have received, as in the present case, $1,200 less than “B” who waited until his condition had reached the point where he was 45% disabled and then proceed with his claim, provided, of course, that the claim was timely.

Maizel’s hypothesis is intrinsically intriguing, but we shall have to leave the discussion of the issue to another day. We are mindful of the recent case of In re Trader 272 Md. 364 , 325 A. 2d 398 (1974). There the Court had before it an alleged denial of equal protection of laws arising out of a difference between the treatment of juveniles in Montgomery County as opposed to the rest of the State. Chief Judge Murphy, speaking for the Court stated: "... [The] constitutionality [of a statute] is presumed in the absence of a clear and convincing showing by the party assailing the legislative classification that it does not rest upon any reasonable basis, but is essentially arbitrary. [(Citations omitted)].

Since no evidence was adduced in the proceedings below to demonstrate the lack of a reasonable basis for the statutory distinction, and since the difference in treatment is not so irrational as to be invidiously discriminatory on its face, we hold on the record... [that there was no denial of] equal protection of the laws. ...” The record in the case now before us is devoid of evidence demonstrating a “lack of a reasonable basis” for the ⁵ legislature’s enactment of the above quoted italicized portion of § 36 (4a). It is incumbent upon one who attacks the constitutionality of a law on the ground that he has been denied equal protection thereof to show that there is no reasonable basis for the legislative distinction, and Maizel’s