Carter v. Allen, Son & Co.

346 A.2d 453, 28 Md. App. 541, 1975 Md. App. LEXIS 388
CourtCourt of Special Appeals of Maryland
DecidedNovember 4, 1975
DocketNo. 126
StatusPublished
Cited by3 cases

This text of 346 A.2d 453 (Carter v. Allen, Son & Co.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Allen, Son & Co., 346 A.2d 453, 28 Md. App. 541, 1975 Md. App. LEXIS 388 (Md. Ct. App. 1975).

Opinion

Menchine, J.,

delivered the opinion of the Court.

Velma E. Carter (claimant) and Allen, Son & Company, Inc. and Casualty Reciprocal Exchange (employer and insurer) agree that claimant sustained an accidental injury arising out of and in the course of her employment, and that she sustained a permanent partial disability of 50% industrial loss of use of her body under § 36 (4) of Article 101 of the Annotated Code of Maryland, and thereby became entitled to the compensation benefits provided by that subsection of the compensation law.1 They agree also that the extent of her permanent partial disability entitles her as well to the additional compensation benefits provided by § 36 (4a) for “serious disability” as the same was enacted by Ch. 446 of the Acts of 1970.2 That subsection as thus enacted reads as follows:

“(4a) — 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 [543]*543serious 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.”

Here their agreement ends.

Under the recited agreed circumstances the Workmen’s Compensation Commission (commission) passed its award requiring employer and insurer to “pay compensation for permanent partial disability at the rate of $58.67 payable weekly * * * not to exceed the sum of $21,645.00.” Employer and insurer appealed to the Superior Court of Baltimore City. On that appeal, employer and insurer sought and were granted summary judgment by which the award of the commission was corrected, requiring employer and insurer to “pay compensation for permanent partial disability at the rate of $58.67, payable weekly * * * not to exceed the sum of $19,537.11.” Claimant has appealed to this Court.

It will be observed that the sole difference between the commission’s award and the trial court’s corrected award is the amount of the ultimate sum payable to claimant, i.e., $21,645.00 by the commission; $19,537.11 by the trial court.

Resolution of the dispute requires determination of the meaning and effect of Article 101, § 36 (4a), supra, as that [544]*544subsection was enacted in 1970. Examination of the legislative and judicial background of the subsection will aid in its interpretation. Ch. 446 of the Acts of 1970, by which the new § 36 (4a) was enacted, also had repealed former § 36 (3a) and § 36 (4a) of Article 10.1 as the same initially had introduced the “serious disability” 3 benefit as a totally new concept4 of workmen’s compensation, the constitutionality of which has been recognized.5

There can be no doubt of the legislative intent in the passage of the 1970 legislation whereby § 36 (3a) and § 36 (4a) were repealed and the new § 36 (4a) enacted. The former subsections by which the new concept of “serious disability” had been initiated, had become the subject of litigation culminating in the decision in Barnes v. Ezrine Tire Co., 249 Md. 557, 241 A. 2d 392 (1967). In Barnes, an injured workman contended that the two subsections must be given cumulative effect even though the disability under one of [545]*545them did not, standing alone, qualify independently for the allowance of “serious disability” benefits. The contention was rejected, the Court saying at 562 [395]:

“The arguments made by the claimant fly in the face of the legislative intent. Chapter 322 was enacted ‘to create certain new categories [emphasis ours] of persons having a serious disability.’ Subsection 3a sets forth the conditions necessary for an injury to qualify as a serious disability under 36 (3) relating to specific injuries. Likewise, subsection 4a sets forth the conditions necessary to qualify as a serious disability under 36 (4) concerning other injuries. In so doing, the legislature intentionally created two new categories. Had the legislature intended that 3a and 4a should be read together, it undoubtedly would have enacted only one additional subsection to § 36 with regard to serious disabilities. Furthermore, the qualifying conditions under 36 (3a) and 36 (4a) are not identical. In order for a claimant to qualify for a serious disability award under 3a, he must have been awarded compensation for 175 weeks or more under 36 (3). And in order for him to qualify under 4a, the claimant must have been awarded compensation for 200 weeks or more (i.e., an award equal to 40% or more of $12,500 at $25 a week). There is therefore no basis for combining a nonqualifying award under one subsection with a qualifying award under the other subsection so as to make both of them qualify. We have heretofore held that injuries not specifically named should be treated independently from those which are specifically named. Coca-Cola Bottling Works v. Lilly, 154 Md. 239, 140 Atl. 215 (1928). For the same reason, 36 (4a) should likewise be separately considered.”

Passage of Ch. 446 of the Acts of 1970 followed the decision in Barnes.

[546]*546It is patent that the new subsection, combining the two prior subsections into one, was a legislative response to that decision. The new legislation made clear that the full actual disability of a workman must be considered in the determination of “serious disability,” whether it was the product of scheduled specific injuries under § 36 (3) or to the body as a whole under the “other cases” provisions of § 36 (4) or to a combination of both. The new § 36 (4a) made no other change of substance.6

The proper formula for calculation of the number of weeks of compensation benefits payable under § 36 (4) for 50% loss of use of the body is as follows:

50% X $ 17,500.00 -j- $ 35.00 = 250 weeks

(Disability) (Maximum “Other (Weekly benefit

Cases” Award) under “Other Cases”)

See Barnes v. Ezrine Tire Co., supra, at 562 [395].7

The formula for calculation of the additional number of weeks of compensation for “serious disability” is specifically set forth in § 36 (4a), i.e., “The weeks for such award shall be increased by one third (computed to the nearest whole number) * * *.”

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Cite This Page — Counsel Stack

Bluebook (online)
346 A.2d 453, 28 Md. App. 541, 1975 Md. App. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-allen-son-co-mdctspecapp-1975.