Schindele v. NU-CAR CARRIERS. INC.

Melvin, J., delivered the opinion of the Court. The appellant, John W. Schindele, on May 3,1973, sustained an accidental injury arising out of and in the course of his employment with one of the appellees, Nu-Car Carriers, Inc. By its order dated December 20, 1974, the Workmen’s Compensation Commission directed the appellees, Nu-Car Carriers, Inc. and its insurer, to pay the appellant “compensation for permanent partial disability at the rate of $35.00, payable weekly, beginning May 18,1974 (the day after termination of temporary total disability previously awarded), not to exceed the sum of $6,125.00 allowable under ‘Other Cases’ ...” The award thus amounted to $35.00 per week for 175 weeks. Approximately one year later, on December 9, 1975, a hearing was held on appellant’s petition to reopen, filed a short time prior thereto, to determine the extent, if any, of his increased disability. As a result of the hearing, the Commission, on March 23, 1976, passed an order granting a “Supplemental Award of Compensation”.

At the time of the supplemental award, the original award of 175 weeks of compensation at $35.00 per week had been paid in full, including a partial lump sum payment of $2,200.00 made on January 16, 1976 at appellant’s request and with the Commission’s approval. The March 23,1976 supplemental award was for a “serious ⁷⁰⁷ disability” under Md. Ann. Code Art. 101, § 36 (4a), which then provided (1957 ed., 1964 repl. vol., 1972 cum. supp.): “(4a) Same — Serious disability. — A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a serious disability; except any award for disfigurement or mutilation under subsection (3) (f) of this section shall not be considered in the determination of a serious disability. The weeks for such award shall be increased by one third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee’s established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages. This subsection, to the extent of any inconsistency, prevails over subsection [subsections] (3) and (4); but otherwise subsections (3) and (4) apply 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 actually paid. ” (Emphasis added.) The Commission’s order of March 23,1976 reads as follows: “Hearing was held in the above claim at Hyattsville, Maryland on December 9, 1975 on the claimant’s Petition to Reopen on the following issue: Worsening of condition The Commission, having granted the claimant’s Petition to Reopen, finds that as a result of his ⁷⁰⁸ accidental injury on May 3, 1973 the claimant was again temporarily totally disabled from November 30,1974 to April 18,1975 inclusive; and finds on the issue presented that the claimant now has a permanent partial disability under ‘Other Cases’ amounting to 50% industrial loss of use of his body as a result of the injury to his lumbosacral area and neuropsychiatric disability.

The Commission finds that the claimant now has a serious disability pursuant to the provisions of Section 36, Sub-section (4a) of Article 101 and is entitled to 333 weeks less the prior award of 175 weeks at $35.00 per week making a new total of 158 weeks at $65.00per week not to exceed the sum of $10,270.00 due under this Award, which is in addition to the Order of this Commission dated December 20, 1974. It is, therefore, this 23 day of March, 1976, by the Workmen’s Compensation Commission ORDERED that Nu-Car Carriers, Inc., employer and Liberty Mutual Insurance Company, insurer, pay unto John W.. Schindele, claimant, compensation for additional temporary total disability at the rate of $96.80, payable weekly, beginning November 30, 1974 and ending April 18, 1975 inclusive; and pay compensation for permanent partial disability at the rate of $65.00, payable weekly, beginning April 19, 1975 not to exceed the sum of $10,270.00 allowable under ‘Other Cases’ which is in addition to the Order of this Commission dated December 20,1974; subject to the provisions of the Workmen’s Compensation Law of Maryland. It is further ORDERED that statement of compensation paid be filed with this Commission