Paul v. Glidden Co.

Marbury, C. J., delivered the opinion of the Court. Appellant was working for The Glidden Company, the appellee, when he had the accident, hereinafter referred to, on January 28, 1943. He was at that time forty-four years old. When he was nineteen he had an accident in which he lost entirely the first and second fingers of his left hand.

The accident on January 28, 1943, was to the third and fourth fingers of the same hand. As a result of this last accident, he suffered permanent partial disability of the hand. The question in this case is ¹¹⁶ how the amount of that disability is to be calculated in view óf the provisions af Article 101, Section 48, of Flack’s Annotated Code, which is part of the Workmen’s Compensation Act. The State Industrial Accident Commission found that he was disabled to the extent of 45 per cent, of the use of his left hand, and that, therefore, he was entitled to compensation at the rate of $18.00 a week for a period of 74.7 weeks.

On appeal, the case was heard in the Court of Common Pleas, before the Court without a jury. It modified the award of the Commission to a period of 13.8 weeks, basing this conclusion upon a calculation made as a result of an interpretation of the statute. From the judgment, affirming in part and reversing in part the decision of the Commission, the appeal comes here. The injuries to appellant were lacerations of the left ring and little fingers, with a fracture of the last phalanx of the ring finger.

A calculation based upon loss of the use of the fingers separately could be made, but under the decision of this Court in the case of Lisowsky v. White, 177 Md. 377 , 9 A. 2d 599 , the compensation should be based upon a fractional loss of use of the hand, rather than upon the total amount payable for the fingers separately, on the theory that the higher element or measure of damage in workmen’s compensation cases should be accorded to the injured person. The medical testimony is that prior to the accident of January 28, 1943, the appellant had an existing disability of 40 per cent, loss of use of his left hand; that subsequent to the accident of January 28, 1943, he had a disability of 45 per cent, loss of use of the hand. The Court held that appellant entered his present employment with a 60 per cent, hand, rather than a 100 per cent, hand and applied that part of Article 101, Section 48, contained in the unnumbered paragraph following paragraph (4). This provides that whenever it shall appear that any disability is due in part to an accidental injury and in part to a pre-existing infirmity, the Commission shall determine the proportion of the disability reasonably attributable to the injury, ¹¹⁷ and the proportion reasonably attributable to the preexisting infirmity, and the employee shall be entitled to compensation for that proportion of his disability which is reasonably attributable solely to the accident, and shall not be entitled to compensation for that proportion of his disability which is reasonably attributable to the pre-existing infirmity.

The method of application made by the Court was that the appellant suffered a 5 per cent, loss of use as a result of the injury, but considering his 60 per cent, hand as if it were a 100 per cent, hand, a 5 per cent, loss of use of a 60 per cent, hand is one-twelfth, and one-twelfth of 100 per cent, is 8% per cent. That percentage of 166 weeks, which is the provision in the statute for total loss of hand, gave appellant 13.8 weeks, instead of 74.7 weeks. There is another provision in Article 101, Section 48, which is an unnumbered paragraph following sub-paragraph (1). It reads as follows: “Whenever any person who has suffered the loss, or loss of use of a hand, arm, foot, leg or eye, shall enter into a contract of employment, it shall be permissible for the employee to waive in writing, either in the contract of employment, or by a separate written instrument, any right to compensation to which he would be entitled because of the pre-existing permanent partial disability, in the event of subsequent accidental injury, and in such cases the employee so suffering an additional accidental injury, shall be entitled to the compensation for the disability resulting solely from such additional accidental injury.

No such waiver shall be effective unless the pre-existing permanent partial disability shall be plainly described therein, nor unless the same be executed by the employee with knowledge of its contents prior to the time of the accident upon which the claim is based.” It is not disputed that appellant had suffered the loss of use of his hand when he entered into his contract of employment, nor is it disputed that no waiver was made by the appellant at that or any other time. The trial court held such a waiver was not a necessity before the provisions of the ¹¹⁸ other paragraph providing for the apportioning of the disability became effective. Had a waiver been obtained, then the result, under the trial