Miller v. James McGraw Co.

MELVIN, J., delivered the opinion of the Court. On March 3, 1944, the State Industrial Accident Commission awarded the appellant, Richard Miller, compensation at the rate of twenty dollars per week, payable weekly, not to exceed six thousand dollars, for “permanent total disability” resulting from an accidental injury arising out of, and in the course of, his employment by James McGraw Company, one of the appellees. On the employer’s-insurer’s appeal to the Superior Court of Baltimore City, the case was submitted to a jury on the three following issues: (1) Is the claimant permanently totally disabled as the result of accidental injury sustained on December 19, 1942? (2) If the answer to issue No. 1 is “No,” then is the claimant permanently partially disabled as the result of an accidental personal injury sustained on December 19, 1942?

(3) If the answer to issue No. 2 is “Yes,” then what percentage of maximum permanent partial disability has the claimant suffered as the result of an accidental injury sustained on December 19, 1942? ⁵³² The jury’s answers to these issues were: As to No. 1, “No”; as to No. 2, “Yes”; as to No. 3, “25%,” — thereby reversing the decision of the State Industrial Accident Commission. It is from the judgment on this verdict that the present appeal arises. That the claimant’s injuries are permanent is not disputed now, the only point being whether this permanent disability is “total,” as found by the Commission, or “partial,” as found by the jury. The first order passed by the Commission was on January 16, 1943, and was on the basis of temporary total disability.

This was followed by an order of March 2, 1943, directing that payments of compensation cease as of January 26, 1943. On May 14, 1943, the Commission passed another order rescinding the one of March 2nd and affirming the original order of January 16, “subject to a credit for days claimant worked and received wages during temporary total disability, if any, and subject to further consideration when the nature and extent of the permanent partial disability, if any, can be determined.” This last mentioned action of the Commission was taken as a result of the claimant’s appeal to the Baltimore City Court, where the case was heard by the court sitting as judge and jury, and where the following issues and answers thereto were agreed upon by counsel for both sides, namely: (1) Was the claimant temporarily totally disabled as of January 26, 1943? Answer: “Yes”; (2) Is the claimant still temporarily totally disabled? Answer: “Yes”; (3) Can it now be determined whether the claimant has any permanent partial disability?

Answer: “No.” It is significant that by this order of May 14, 1943, the only question left open for future determination was that relating to the claimant’s “permanent partial disability, if any.” It was settled by the answers to issues one and two, agreed to by counsel, that the total disability was temporary. This point will be hereinafter referred to in connection with the claimant’s special exception to the employer’s-insurer’s 2 — A prayer. ⁵³³ After the passage of this order, the claimant returned to his home in South Carolina, his case being subject to review when called for in due course to determine the one open issue, as stipulated. In the meantime his compensation of twenty dollars a week was continuing, on the assumption that he was still temporarily totally disabled. The character of his injuries, hereinafter specified, was such that he had been unable up to that time to work at his former occupation as a ditch-digger or farm hand, and the question was to find out what progress, if any, toward recovery he would make in his home environment.

The employer-insurer kept an eye on him during the summer and early autumn of 1943 found that he had been doing then some work at ditch-digging, and had been otherwise active, and on November 3rd of that year had the claimant examined at the Orthopedic Clinic, Columbia, South Carolina. As the result of that examination the appellee, as of November 15, 1943, stopped claimant’s compensation. On February 3, 1944, at the latter’s request, a hearing was held in the office of the State Industrial Accident Commission to determine the “nature and extent of disability.” This was the hearing at which the Commission finally decided that the claimant was “permanently totally disabled,” from which decision the appeal to the Superior Court of Baltimore City was taken, resulting in the jury’s finding of permanent partial disability. The claimant’s injuries are fully and expertly described by the three competent specialists who testified in the case — Dr. Allen F. Voshell and Dr. Austin T. Moore, on behalf of the appellees, and Dr. Robert W. Johnson, Jr., on behalf of the appellant.

All of them examined the injured man, after obtaining from him a history of his case, and came to substantially the same conclusion, namely, that his injuries were partial in character, but permanent in quality, which is the statute’s definition of “Permanent Partial Disability.” Their only difference of opinion was as to the extent or percentage of this disability. This point relates specifically to Issue No. 3 ⁵³⁴ submitted to the jury, and is the one which presents the most serious difficulty on. this appeal. A summary of the doctors’ findings of the undisputed facts shows that the claimant was injured on December 19,. 1942, while working as a laborer for the James Mc-Graw Company near Baltimore City when a truck on which he was riding partially overturned, throwing him against the side or tail gate of the truck which hit him across the back about hip level, wrenching his back and also seriously affecting his left thigh and leg. He was helped out of the truck, managed to get home and, after consulting several doctors during the course of the next few weeks, presumably at the instance of the appellees, underwent an operation at the Johns Hopkins Hospital on March 3, 1943.

By this operation two inter-vertebral ruptured discs, which were protruding and pressing on a nerve, were removed and the patient was returned to the ward “in good condition.” The post-operative developments were, uneventful, and he was. discharged from the hospital on March 17, 1943. The first examination of the claimant by the three experts in the pending case was by Dr. Voshell on April 20, 1943, the next was by Dr. Austin-T. Moore of the Orthopedic Clinic at Columbia, South Carolina, on November 3, 1943, and, in sequence, by Dr. Voshell on January 20, 1944, by Dr. Johnson on January 30, 1944, and again by Dr. Voshell on June 10, 1944. This last examination was subsequent to the final • decision of the State Industrial Accident Commission, which was on March 3rd, and on that ground was made the subject of an exception by the claimant to the admissibility on appeal of testimony concerning it. As the net result of all of these examinations the ■ opinions given by the three experts as to the percentage of the claimant’s physical disability are to be thus classified, according to the record before us: Dr. Voshell— ten per cent, of “permanent total disability”; Dr. Moore— twenty-five per cent, “permanent partial general disability” ; Dr. Johnson — “approximately fifty per cent, wholly ⁵³⁵ physical,” which opinion he supplemented by saying: “My percentage of permanent total disability was based on his physical lesion plus his sense of the back not being reliable for usage, and it was eighty per cent.” Dr. Johnson, in other words, added thirty per cent, because of the psychological aspect of the patient.

As to this his observation is enlightening. He testified: “I felt that he had sustained a physical injury of considerable moment; that it had been to a partial extent relieved by the operation, but that he had an underlying physical condition, and had on top of that acquired a considerable apprehensive protective reaction, which, to a man of his age who had a physical disability, who works with his back, and if he has had backache long enough, it is awfully hard to get him to go back to work.” On this same point, and to the contrary, Dr. Moore testified that: “This man suffered what seems to be a relatively slight injury to his left leg and back about ten months ago. However, it apparently was of sufficient severity to cause a hernia of the nucleus pulposus of the fourth and fifth lumbar interspaces. The history as given above by the patient is very uncertain because this man simply does not know when, by whom, or for what he was treated.

It is assumed that at the time of operation the cause of his difficulty was located and removed. Normally in private work one would expect a more rapid convalescence than has occurred in this case. This long convalescence may be influenced by the fact that he is at present receiving twenty dollars a week compensation and has no desire to return to the type of work in which he was employed at the time of his accident. In fact, he states that he would rather work locally for two dollars a day than return to his previous work at any salary.” The sum and substance of this expert testimony is to present on this record the case of an injured workman, coming within the provisions of the statute, who is unquestionably entitled to compensation on the basis of permanency of injuries but whose recovery of award is ⁵³⁶ governed by the jury’s determination of “what percentage of maximum permanent partial disability” is applicable.

That is the way the case stood when it was submitted to the jury with Issue No. 3 included, but that issue was so inartificially drawn that it was open to misinterpretation. What was meant by the use of the word “maximum” in connection with “partial” disability? In reason, it could have but one of two meanings as applied to this case. If, first, it had reference to the maximum amount of money named in the statute under the caption “Permanent Partial Disability,” Code, 1943 Supp., Art. 101, Sec. 48, Subsec. 3/ namely, $3,816, the issue would be plainly defective, for it is no part of the function or prerogative of a jury in a case arising under the Workmen’s Compensation Act to figure or consider amounts of money awards in reaching their verdict.

Schiller v. Baltimore & O. R. Co., 137 Md. 235, 242 , 112 A. 272 . They may go no further than answer the particular issues subrnitted to them, and must leave to the State Industrial Accident Commission the business of computing the amount of compensation to be paid the claimant. ‘The alternative meaning to be ascribed to the word “maximum,” as used in the issue, is that it relates to a percentage of total disability. Taken literally, the words used, “a percentage of maximum permanent partial disability,” do not relate to total disability and there is considerable doubt as to just what they do mean. No issue is sound which is not clearly and unequivocally expressed, and which is not susceptible of an answer leading to the final determination of the case on a basis recognized by the statute.

Bethlehem Steel Co. v. De Mario, 164 Md. 272 , 164 A. 748 ; McCulloh & Co. v. Restiro, 152 Md. 60 , 136 A. 54 . Issue No. 3, therefore, is objectionable because of its ambiguity, and the submission of it to the jury would be meaningless were it not for the fact that a consideration of the whole case conclusively shows that throughout the proceedings there was general agreement as to the meaning of the words ⁵³⁷ actually used. All of the testimony on this point — that of the three medical experts — relates to a percentage of permanent total disability, and it is reasonable to assume that when the jury answered “25%” to the question propounded by the third issue, they intended this to mean 25 per cent, of permanent total disability in accordance with this testimony. The. case having been tried on that interpretation, which would obviously be more favorable to the appellant than the other, the error in submitting the issue was not prejudicial to him, and will not be held reversible under the facts and circumstances here shown.

The reasons for this conclusion are strengthened by the fact that the claimant (appellant) failed to make any objection to this issue, or to indicate any non-concurrence in it, until the taking of testimony had been concluded and the trial had reached its last stage. Then, for the first time, according to the record, he raised the point and did so through a prayer asking the court not to submit the third issue to the jury, “because any answer to said issue will be indefinite, inconclusive, and will not go to the ultimate determination of the case.” To the court’s refusal of this prayer an exception was reserved, and it is argued that this ruling is now before us for review under Trials Rule 7 (b), General Rules of Practice and Procedure, 1941. Although this rule states that, upon appeal, error may be assigned as to the submission of issues, we do not construe this to apply to an issue filed in the case long before the trial date and accepted without objection down to the very last stage of the proceedings. An objection to an issue must be seasonably made in order to obtain the consideration of it on appeal, and we hold that, under the facts of this particular case, where the issues were filed on May 19, 1944, and the trial held on September 28, 1944, claimant’s objection came too late.

To hold that a litigant may make a belated move like this in a statutory proceeding especially designed to avoid technical legal maneuvers, would be contrary to ⁵³⁸ the purpose of the statute and to the spirit, if not the letter, of the' General