Subsequent Injury Fund v. Compton

Melvin, J., delivered the opinion of the Court. As in Reliance Insurance Company v. Watts, 16 Md. App. 71 , this Workmen’s Compensation appeal presents for our resolution a dispute between the claimant’s employer and insurer (appellees) and the Subsequent Injury Fund ⁵²⁸ (appellant) concerning what proportion of an award for permanent total disability each should pay. The genesis of the dispute was an order of the Workmen’s Compensation Commission, dated August, 1962, determining that as a result of an accidental injury occurring on February 4, 1961, the claimant, Sydney Compton, “sustained a permanent partial disability resulting in 40% loss of use of his left hand and 15% loss of use of his right hand and a permanent partial disability under ‘Other Cases’ amounting to 25% industrial loss of use of his body as a result of the injury to his back”. On November 29, 1966, Compton was again involved in an accident on the job.

In this accident he sustained serious injuries to his left ankle, left shoulder and left arm when a truck he was unloading from a trailer fell off the top of the trailer. By an order dated December 20, 1968, the Commission decided: 1) Compton was permanently partially disabled under “Other Cases” (Md. Code, Art. 101, § 36 (4)), amounting to 80% industrial loss of use of his body, for which he was awarded an aggregate sum of $21,320.00. 2) 65% of the claimant’s permanent partial disability was attributable to the November 29, 1966 accident and the employer and insurer were ordered to pay $13,858.00, representing 65% of the total award. 3) 35% of the claimant’s permanent partial disability was attributable to “a pre-existing condition” (i.e., the residual effects of the February 4, 1961 accident) and the Subsequent Injury Fund was ordered to pay $7,462.00, representing 35% of the total award, subject to a credit of the amount awarded the claimant for his injuries in the 1961 accident. The net result of this order was that the employer and insurer were to pay compensation for 52% permanent ⁵²⁹ partial disability under “Other Cases” and the Subsequent Injury Fund was to pay 28% permanent partial disability under “Other Cases”, subject to the credit already mentioned. None of the parties appealed the order.

The apportionment of the award between the employer and insurer and the Subsequent Injury Fund was pursuant to Md. Code (1964 Repl. Vol.), Art. 101, § 66 (1), which provides in pertinent part as follows: “Whenever an employee who has a permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment, incurs subsequent disability by reason of a personal injury, for which compensation is required by this article resulting in permanent.partial or permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury. However, in addition to such compensation to which the employer or his insurance carrier is liable, and after the completion of payments therefor provided by this article, the employee shall be entitled to receive and shall be paid additional compensation from a special fund to be known as the ‘Subsequent Injury Fund’, created for such purpose, in the manner described hereafter in this section, it being the intent of this section to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury resulting in permanent total disability or a substantially greater permanent partial disability.” On March 12, 1974, a hearing was held before the Workmen’s Compensation Commission on the claimant’s ⁵³⁰ timely Petition to Reopen for “Worsening of Condition” pursuant to Md. Code (1975 Cum. Supp.), Art. 101, § 40.

Subsections (b) and (c) of Section 40 provide: “(b) Readjustment upon aggravation, etc. of disability. — If aggravation, diminution or termination of disability takes place or is discovered after the rate of compensation shall have been established or compensation terminated in any case, the Commission may, upon the application of any party in interest or upon its own motion, readjust for future application the rate of compensation, or in a proper case, terminate the payments. (c) Modification or changes. — The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified;. . .” The petition to reopen was granted and by its order dated May 9, 1974, the Commission found: “. . . on the issue presented that the claimant is now permanently totally disabled as a result of his accidental injury of November 29, 1962, [sic, see footnote 1 ], and is entitled to compensation benefits in the amount of $30,000.00 under the provisions of Section, 36, Subsection 1 of Article 101. Inasmuch as the claimant was awarded compensation benefits under the Order dated December 20, 1968 in the amount of $13,858.00 to be paid by the employer and insurer and $7,462.00. for the pre-existing condition, the claimant is now entitled to $8,680.00 to be paid by the employer and insurer, which is in addition to money previously awarded under the Order dated December 20, 1968.” (Emphasis added) ⁵³¹ On July 1, 1974, the employer and insurer appealed this decision of May 9, 1974, to the Superior Court of Baltimore City claiming, as they do before this Court, that the Commission erred as a matter of law in directing the employer to pay compensation on the basis of permanent total disability, rather than merely the compensation payable under “Other Cases” for an additional 20% disability. Prior to their appeal to the Superior Court of Baltimore City the employer and insurer had sought and obtained a rehearing before the Commission claiming the award was “incorrectly computed”.

The rehearing was held on May 24, 1974, at which the employer and insurer presumably advanced the same argument they made before the Superior Court and now advance in this Court. However, by its order of June 12, 1974, the Commission affirmed its order of May 9, 1974, requiring the employer and insurer to pay the $8,680.00, i.e., the entire difference between the total award for permanent total disability ($30,000.00) and the $21,320.00 previously awarded the claimant under its order of December 20,1968. The Superior Court of Baltimore City, after a hearing, granted a motion for summary judgment filed by the employer and insurer, and by order dated February 10,1975, remanded the case to the Commission “to fix an award under ‘Other Cases’ ”. It is from this order that the Subsequent Injury Fund has appealed to this Court, claiming the trial court erred in “overruling the decision of the Workmen’s Compensation Commission regarding the applicable formula for payment of benefits by the Employer and Insurer and the Subsequent Injury Fund”.

We are persuaded that the trial court was in error in granting appellees’ motion for summary judgment. The appellees do not question the finding by the Commission that the claimant was permanently and totally disabled as of March 12, 1974, the date of the hearing on the claimant’s petition to reopen. The appellees’ only complaint is that the Commission did not apportion the award for that disability, but, instead, required them to pay all of it, albeit with credit for what had already been paid by both appellees ⁵³² and appellant pursuant to the original award of December 20,1968. They claim the Commission wrongfully disregarded its 1968 finding that 35% of the claimant’s 80% permanent partial disability was due to a pre-existing condition.

In effect, théy argue that since the Commission, in its order of May 9, 1974, did not specifically change its prior determination of a 28% pre-existing permanent partial disability, 2 this precluded a subsequent finding that the 1966 accident could alone result in permanent total disability for which they alone can be held responsible. They argue that when the case was reopened in 1974 this pre-existing disability was still present and the Commission “merely found that the injury sustained in the subsequent accident had worsened so that the claimant’s industrial loss of use increased from 80% to 100%.” From this premise they argue that the only additional responsibility that should have been imposed upon them by the order of May 9, 1974, was to pay compensation for 72% permanent partial disability under “Other Cases” as opposed to the 52% for permanent partial disability required of them by the 1968 order. They would then have the appellant pay the balance of the $30,000.00 award for permanent total disability. We think the appellees argue from a false premise.

In the context of the Workmen’s Compensation Law, if one suffers injuries resulting in permanent partial disability of a member of his body or of his body as a whole, it does not necessarily follow that a subsequent injury cannot result in his total and permanent disability without attributing that result to the prior injuries to any substantial degree or to any extent at all. Many examples come to mind. One will suffice: One is 50% permanently and partially disabled because of a back injury. In a subsequent accident he loses both legs.

Could it be denied that the subsequent injury alone resulted in permanent total disability? We think not. The instant case is, of course, not as clear cut, but the principle is the same. Here, in 1968 the Commission determined that the claimant was 80% permanently ⁵³³ partially disabled. 35% of that disability was attributed to the 1961 accident.

In its 1974 order the