Reliance Insur. Co. v. Watts

Powers, J., delivered the opinion of the Court. This Workmen’s Compensation appeal leaves the claimant, having been awarded maximum benefits for permanent total disability, in the enviable legal position of a disinterested spectator, while his employer’s insurer and the Subsequent Injury Fund litigate the question of what proportion of the total award each should pay. Ralph C. Watts, Sr. was injured in the course of his employment as a guard, or night watchman, on March 4, 1970. Some years earlier he had sustained injuries in a motor vehicle accident, one result of which was the amputation of his left leg.

He performed his watchman duties with the aid of a wheelchair. On the day of the current injury, he had entered his automobile from his wheelchair, to go from one location on his job to another, and while attempting to close the door, he fell and injured his right leg. The ultimate result of that injury was amputation of the right leg above the knee. The Workmen’s Compensation Commission found Mr. Watts to be permanently totally disabled, as it was required to do by Code, Art. 101, § 36 (1) (a) for loss of both legs, and therefore entitled to benefits in the prescribed amount of $45,000.00.

The commission found that 50% of such disability was reasonably attributable to the current injury, and 50% attributable to his pre-existing condition. It ordered payments of compensation by the employer and insurer and by the Subsequent Injury Fund accordingly. An appeal was filed in the Circuit Court for Prince George’s County by the employer and insurer, and the case was submitted to Judge William H. McCullough on written memoranda. In an Opinion and Order filed February 3, 1972, Judge McCullough affirmed the order of the commission.

The insurer took this appeal. ⁷³ The only question we are asked to decide arises from these excerpted provisions of Code, Art. 101, § 66 (1) : “Whenever an employee who has a permanent impairment due to previous accident * * * incurs subsequent disability by reason of a personal injury, for which compensation is required by this article * * * the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury.” The insurer argues that its liability is limited to the amount provided for the loss of a leg in the schedule of specifically enumerated disabilities in § 36 (3) (b). The Subsequent Injury Fund recognizes that the apportionment provisions of § 36 (7) do not apply, because the permanent disability exceeds 50%, but argues that the apportionment should be determined under § 66 (1). The difficulty with this contention is that the only explicit authority to apportion under § 66 (1) arises when the subsequent injury results in death. As Chief Judge Murphy said in a footnote in his opinion for this Court in Subsequent Injury Fund v. Chapman, 11 Md. App. 369 , 274 A. 2d 870 , at page 372: “In simple terms, the employer was liable only for the compensation payable for the current injury; the Fund was obligated to pay the rest.” The question in this case is, What is the compensation payable for the current injury — the loss by the employee of his right leg?

The declared legislative policy that “the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury” does not open the door to apportionment as the commission and the court below applied it, but requires the precise determination of the compensation payable for the current injury. Such determination is the only authority to apportion which is implied in § 66 (lj. ⁷⁴ There was medical evidence before the commission that Mr. Watts had a 40% disability of the body as a whole due to his pre-existing condition and that 60% of his ultimate total disability was the result of his current injury. The commission found the percentages to be 50-50, and the lower court, pointing out that the