Subsequent Injury Fund v. Rinehart

Powers, J., delivered the opinion of the Court. The Subsequent Injury Fund appeals to this Court from an order of Judge Irvine H. Rutledge in the Circuit Court for Washington County in a case which reached that court from the Workmen’s Compensation Commission. Albert William Schroyer, a 59 year old orchard foreman employed by D. Eldred Rinehart and John H. Rinehart, fell from a tractor in the course of his employment on December 11, 1968, and sustained a head injury. Within a few days he demonstrated symptoms of brain damage.

A neurological examination in March of 1969 failed to disclose the reasons for his symptoms. In June of 1969 a further series of neurological tests did disclose the existence of a mass in the brain, and portions of a malignant brain tumor were then surgically removed. Mr. Schroyer died in October, 1969. After a hearing, the Workmen’s Compensation Commission passed an order on February 9, 1970 awarding death benefits to the widow and dependent daughter of the deceased.

The Commission found “that the Subsequent Injury Fund is not applicable”. The employer and insurer duly filed in the circuit court an order for appeal and a petition, asking that the Commission’s order be reversed or modified to find either that the employee’s death was not causally related to the ac ⁶⁵¹ cident, or that it was in part causally related to a preexisting disease, disability or condition. When the death claim was filed before the Commission, the insurer raised the issue of whether the death was due to a pre-existing condition, disease or disability, and asked the Commission to “implead the Subsequent Injury Fund”. The Commission was thus required, under Code, Art. 101, § 66 (5) to request the Attorney General to furnish a member of his staff to represent the Fund.

An Assistant Attorney General did appear and participate in the hearing. The appeal to the circuit court was captioned against the claimants and the Subsequent Injury Fund, and the Fund answered and participated fully as a party throughout the proceedings in the circuit court. As we pointed out in Subsequent Injury Fund v. Howes, 11 Md. App. 325, 333-4 , 274 A. 2d 131 , (certiorari denied by the Court of Appeals, May 3, 1971) the Fund had no standing there to do so, but does have standing to appeal to this Court. See also Subsequent Injury Fund v. Deeds, 11 Md. App. 335, 337 , 273 A. 2d 817 .

In the circuit court the case was tried before a jury, to which two issues were submitted for answers. They were: “1. Was the death of Albert William Schroyer causally related to the accidental injury which he suffered on December 11,1968? 2. Was the death of Albert William Schroyer wholly due to the accidental injury of December 11,1968?” The insurer filed a motion asking the court to direct the jury to answer Issue No. 2 “No”, and the court reserved its decision.

The jury answered “Yes” to each issue. Thereafter Judge Rutledge filed an opinion and order, granting the insurer’s motion that the answer to Issue No. 2 must, as a matter of law, be “No”, and remanding the case to the Commission “for a determination of percentages”. The effect of the circuit court order was ⁶⁵² to hold that the employee’s death was due in part to a previous impairment and in part to the subsequent accidental injury, and to require the Commission to determine the proportion reasonably attributable to each. Code, Art. 101, § 66 (1).

In this appeal the Fund contends that Issue No. 2 was properly one of fact for the jury, not one of law for the court, and that the Fund is not liable, because the deceased, before the accident, had no permanent impairment that was or was likely to be a hindrance or obstacle to his employment. The factual premise to its legal contention is simply not tenable. While several lay witnesses testified that prior to the injury, they had observed no impairment of the decedent’s health or physical condition which was a hindrance or obstacle to his employment, the undisputed expert medical evidence was that the brain tumor pre-existed the accident. It was also undisputed that death was caused by the cancerous tumor, and that the progression of the fatal tumor was accelerated by the injury.

The Fund argues strenuously that there was no preexisting impairment of which decedent or anyone else was aware at the time, and that decedent had not experienced, before the injury, any hindrance to his employment, and reasons that the disease was not one contemplated under § 66 (1). The neurosurgeon who testified said that the decedent suffered from an astrocytoma, a malignant brain tumor which physicians classify in four grades. All are malignant, and all are fatal. None can be caused by trauma.

A patient with Grade I, if operated upon and with follow-up treatment, may live from five to fifteen