Montgomery County v. Kaponin

Marbury, J., delivered the opinion of the Court. Demetrius G. Kaponin, appellee, was employed by Montgomery County on April 28, 1961, as a police officer. At this time, the Fireman’s Fund Insurance Company, one of the appellants, was the Workmen’s Compensation insurance carrier for the other appellant, Montgomery County. In the course of his employment, the appellee sustained an accidental personal injury as the result of being struck on the head by a gun butt while preventing a kidnapping and armed robbery.

Thereafter, the appellee filed a claim with the Workmen’s Compensation Commission, and upon hearing, the Commission found that the appellee sustained an accidental injury arising out of and in the course of his employment resulting in a permanent partial disability amounting to seventy-five per cent industrial loss of use of his body due to neuro-psychiatric inability. The Commission ordered that the claimant be paid disability compensation of $25 weekly, not to exceed the sum of $9,375, and past, present and future medical and hospital expenses incurred as a result of the accidental injury. On July 6, 1962, Kaponin was retired from the employment of the County by reason of his incapacity resulting from the accidental injury. The appellee receives disability benefits from the County of $260 per month pursuant to Montgomery County Code (1960), Chapter 19, ¹¹⁴ Sections 16-19, entitled Relief and Retirement Fund (Retirement Fund).

From the award of the Commission for compensation rendered on January 14, 1963, appellant noted an appeal to the Circuit Court for Montgomery County by serving on the secretary of the Commission an order for appeal on February 11, 1963. On February 20, appellants filed a notice of appeal with the clerk of the Circuit Court for Montgomery County. Thereafter, on February 21, appellee filed a motion to dismiss the appeal on the ground that such appeal had not been filed in the Circuit Court within thirty days of the Commission’s ruling. This motion was overruled by Judge Anderson on March 22.

We think the trial judge was correct in this ruling, for as we view the matter Ch. 40 of the Laws of 1962 then was controlling and it provided that the appeal was to be taken by service of notice of appeal upon the Commission. See Hensley v. Bethesda Metal Co., 230 Md. 556 , 188 A. 2d 290 . Cf. Ch. 342 of the Laws of 1963.

At the trial on October 16, the appellants waived a jury trial and abandoned all issues raised in their petition for relief from the Commission’s order of January 14, except the question as to whether the provision in Code (1957), Article 101, Section 33, “* * * Whenever and so long as by State law, city charter, or municipal ordinance, provision equal to or better than that given under the terms of this article is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this article” bars the claimant from receiving Workmen’s Compensation benefits. Judge Anderson in his opinion and order of January 14, 1964, denied the petition and stated in his opinion that since the plan of retirement provided by the County Code is of a fixed nature and does not provide for medical