State Accident Fund v. Windsor

Orth, J., delivered the opinion of the Court. The question in this case is whether the claim of Thomas A. Windsor, employee (appellee), the State of Maryland, Maryland State Police, employer, the State Accident Fund, insurer (appellants) for benefits under the Workmen’s Compensation Act was barred by limitations. The Workmen’s Compensation Commission decided that it was not. The Circuit Court for Baltimore County at Law on appeal to it confirmed the decision of the Commission.

The question is now before us on appeal from the judgment of the Circuit Court. Code, Art. 101, § 56 (a). But we do not now entertain a final order affirming, reversing or modifying the judgment. Rather, invoking Maryland Rule 1071, we remand the case to the lower court for further proceedings.

The determination of the question as presented involves three provisions of Code, Art. 101 entitled “Workmen’s Compensation.” Section 39 (a) provides in pertinent part: “* * * failure of an employee to file a claim for compensation within two years from the date of the accident shall constitute a complete bar to any claim under this article.” However there are statutory provisions for the tolling of this limitation. Section 38 (c) prescribes: “Where the employer has been given notice, or the employer, or his designated representative in the place where the injury occurred, has knowledge of any injury or death of an employee, and the employer fails, neglects or refuses to file a report thereof, as required by the provisions of subsection (b) of this section, the limitations prescribed by this article shall not begin to run against the claimant or any person entitled to compensation until such report shall have been furnished as required by subsection (b) of this section.” Section 39 (c) states: “When ⁸² it shall be established that failure to file claim by an injured employee or his dependents was induced or occasioned by fraud, or by facts and circumstances amounting to an estoppel, claim shall be filed within one year from the time of the discovery of the fraud or within one year from the time when the facts and circumstances amounting to an estoppel cease to operate and not after-wards.” It is not disputed that the date of Windsor’s accident was 7 April 1967 and that his claim was filed on 23 October 1969. It is also apparent that the employer filed his first report of injury, but the question is when it was received by the Commission. The case was presented to the Circuit Court on the record from the Commission. 1 It was certified to be truly taken from the records and proceedings of the Commission, and we set out in some detail the contents of the record.

It consists of a number of documents, most of which are photostated copies. The first fourteen documents have the numbers (1) through (14) respectively written on them and they appear in that numerical sequence in the transcript of record from the Commission'. The ones relevant to our inquiry are described. (1) Copy of a completed “Employee’s Claim” by Windsor.

It is dated 14 October 1969. It stated the date of the accident to have been 7 April 1957 but subsequently this was shown, as is obvious from the form itself, to be a typographical error, the correct year being 1967. On ⁸³ the form is written “10/23/69 — SAF advised aec 4/7/ 67.” At the upper right hand side of the form is a space not to be filled in by the claimant. It contains information, apparently written by Commission personnel.

It gives the claim number, the insurance company and code number and the following: We have Employer’s Report Doctor’s Report The form is stamped as received by the Commission “Oct 10:26 A.M. ’69.” (2) Copy of a “Standard Form for Employer’s First Report of Injury” completed by the Maryland State Police on Windsor’s injury. It is dated 13 April 1967. It gives the date of injury as 7 April 1967. No stamp showing the date filed is discernible.

(3) Copy of a completed form of issues raised by the insurer dated 27 October 1969 and stamped as received by the Commission “Oct 29 9:44 A.M. ’69.” (4) Copy of Notice of Hearing dated 14 November 1969. The decision written thereon under date of 4 December 1969 over the initials “WRH” is “Cont. Clmt in hosp Reset on request”. (5) Copy of form stating corrected issues raised by insurer dated 12 December 1969 and stamped as received by the Commission “Dec 13 8:20 A.M. ’69”.

(6) Copy of “Notice of Hearing” dated 8 January 1970 setting out the decision under date of 29 January 1970. (8) Copy of Surgeon’s Report dated 14 April 1967 signed by Dr. H. Calvin Kaufman. The stamp showing receipt by the Commission is barely discernible but “Apr ’67” is legible. The space to indicate whether or not the Employer’s Report was received is not filled out. ⁸⁴ (9) Copy of Surgeon’s Report dated 26 May 1967— signed by Dr. Clinton R. Harrison.

It is stamped as received by the Commission “May 31 10:35 A.M. ’67.” The space to indicate whether or not the Employer’s Report was received is not filled out. Documents (10) to (14) inclusive are respectively copies of the order of award of compensation dated 2 March 1970; Notice of Appeal by Employer and Insurer dated 5 March and stamped as filed 6 March; petition on behalf of employer and insurer assigning basis for the appeal dated 6 March and stamped as filed 9 March; letter dated 13 March from the Commission to all parties informing them of the appeal to the Circuit Court for Baltimore County; answer of claimant stamped as filed “Apr 3 9:24 A.M. ’70.” The remainder of the record of the Commission consists of a form listing the Commissioners present and stating that “Claim proceedings instituted October 23, 1969;” a transcript of the hearing on 29 January 1970 at Princess Anne, Maryland before Commissioner William R. Hughes and the certification of the Secretary of the Commission dated 22 July 1970 that the foregoing was truly taken from the records and proceedings of the Commission. At the Commission hearing it was stipulated that the claim form was received 23 October 1969. Windsor testified he was injured on 7 April 1967 and a first operation to remove two disks was performed on 10 April 1967.

He stayed in the hospital about 10 days. “Then I returned home, after I returned home I had been home approximately a day, Mr. Fountain, for the State Accident Fund contacted me and ascertained full information as to what happened. I advised him that I had slipped on the, off the curbing at Pocomoke and removing luggage. And, he stated that at this time that it looked like it was, would be covered by the State Accident Fund due to the fact that it was an accident and for me not to worry about anything. That they would take care of all details.” As far as can be determined from Windsor’s testimony, ⁸⁵ he later had a second operation to fuse the lower back. “Mr. Fountain again contacted me and wanted to know how I felt and I advised him that it was still sore.

He asked me to try to bend over. I bent over. He stated that it looked like I would have anywheres from seven, from five to seven per cent disability. And, that the State would take care of me.

I asked him if there were any information I had to submit. He advised me again that he would take care of anything that needed doing. If not, he would contact me. I later talked with the supervisor at Salisbury Barracks. [First Sergeant Dobson]. * * * I know he had been through a similar incident. * * * I knew it would have to be a form submitted.

But, when he told me it would be, I rested assured because the State, whenever they tell us anything they stand behind what they tell us. And, I took him at his word.” He was asked why he had not filed a form before 23 October 1969. He replied: “Because I was advised that — informed that they would take care of it. And I was of the opinion that they had it taken care of, the form.” The Commissioner asked when the employer’s first report was filed.

The transcript of the hearing before the Commission reads, pp. 17 and 18: “MR. RUSSELL (Counsel for Employer and Insurer) : Yes, sir. I think I can — employer’s first report of injury was April 13th, 1967. THE COMMISSION: When was it filed with the Workmen’s Compensation Commission” That’s the key to the thing.

MR. RUSSELL. It’s received by — excuse me. This is all I have, Your Honor.

I can’t— MR. SIMPKINS (Counsel for claimant) : You have a thermafax copy? THE COMMISSION: What are you doing with the original? It’s the obligation of any employer to forward it to the Workmen’s Compensation Commission.

MR. RUSSELL: Sorry about that. ⁸⁶ MR. SIMPKINS: I have one here received— MR. RUSSELL: That’s not the same thing.

That’s a different one. THE COMMISSION: The SF2 from the doctor was received in the Workmen’s Compensation Commission, from Dr. Kaufman, was received April 18th, 1967. And, from Dr. Clinton Harrison was received May the 31st, 1967. MR.

RUSSELL: You don’t have a copy of this? THE COMMISSION: Oh, yes, I have a copy of it. MR. RUSSELL: But, you should have gotten the original.

THE COMMISSION: I’m not concerned whether it’s the original or a copy. The point involved is when it’s filed with the Workmen’s Compensation Commission. MR. RUSSELL: Right.

Right. THE COMMISSION: Under the section as applicable to estoppel— MR. SIMPKINS: 38. MR.

RUSSELL: 39. THE COMMISSION: — that is to be filed when there is more than three days lost time. MR. RUSSELL: I see.

Well, but there was never any more than three days lost time because he was always paid by sick leave. THE COMMISSION: The Statute doesn’t say about how much he’s paid, does it? Says lost time as a result of the accident. Is that a fair statement?

MR. RUSSELL: I suppose. Would you like to have this original and give me— THE COMMISSION: Doesn’t make any difference to me. I have