Potter v. Southern Maryland Electric Cooperative, Inc.

579 A.2d 1219, 84 Md. App. 453, 1990 Md. App. LEXIS 157
CourtCourt of Special Appeals of Maryland
DecidedOctober 2, 1990
DocketNo. 1944
StatusPublished

This text of 579 A.2d 1219 (Potter v. Southern Maryland Electric Cooperative, Inc.) 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
Potter v. Southern Maryland Electric Cooperative, Inc., 579 A.2d 1219, 84 Md. App. 453, 1990 Md. App. LEXIS 157 (Md. Ct. App. 1990).

Opinion

WILNER, Judge.

The issue in this case is not susceptible of facile articulation. It is whether a person who was found by the Workers’ Compensation Commission to be permanently totally disabled, in part by reason of a compensable accident and in part by reason of a non-compensable worsening of a prior condition, and who thus received only part of the compensation that would have been payable if the whole of his permanent total disability had resulted from the compensable accident, may reopen his case under Md.Ann.Code art. 101, § 40(b) or (c) and receive additional compensation upon a showing that the disability attributed to the compensable accident has increased. We think that the answer is “yes,” and we shall therefore reverse the summary judg[455]*455ment entered in favor of appellee by the Circuit Court for Charles County.

On September 11, 1976, appellant injured his left foot in the course of his employment with appellee. On August 19, 1981, the Commission found that appellant was permanently totally disabled. That disability, it found, was attributable to three causes: 25% was due to the accident; 40% was due to skin cancer which he had prior to his employment with appellee; and 35% was due to a worsening of the skin cancer after the accident. The 25% disability attributed to the accident was based on a finding that appellant had sustained a 50% loss of his left foot and that a total loss of the left foot would have created a 50% permanent partial disability under art. 101, § 36(4), commonly referred to as “other cases,” i.e., not involving a statutorily set disability based on the loss of a particular part of the body. Appellee was ordered to pay compensation based on the 25% disability resulting from the accident; the Subsequent Injury Fund was ordered to pay based on the 40% disability attributed to the preexisting skin cancer. No compensation was paid for the 35% attributed to a worsening of the skin cancer following the accident because the Commission found that to be non-compensable. See Subsequent Injury Fund v. Thomas, 275 Md. 628, 342 A.2d 671 (1975).

In January, 1987, appellant filed a petition to reopen the case, alleging that, at some point after the Commission’s award, the condition of his left foot had worsened to the point that the foot had to be amputated. He therefore claimed that the permanent disability resulting from the accident had increased from 25% to 50% and that he should be compensated accordingly. The petition made no reference to § 40 or any other statute, although in a subsequent memorandum filed with the Commission, appellant relied on § 40(c); appellee’s response to the petition referred to § 40 generally. In a brief order entered April 4, 1989, the Commission denied the petition, stating that “there can be no finding of worsening of condition in this case.” Although that statement could mean a number of things, the [456]*456things, the undisputed fact that appellant’s left foot was amputated and the manner in which the case was presented to the Commission indicate the Commission was ruling as a matter of law that, because appellant had previously been found permanently totally disabled, there could be no further increase in disability and thus no entitlement to additional compensation. On appeal, the Circuit Court for Charles County, by granting appellee’s motion for summary judgment, affirmed for precisely that reason.

Appellee states the proposition succinctly in its brief:
“The Commission’s finding of permanent total disability as of August 10,1981 amounted to a determination by the Commission that the Appellant had sustained a total loss of industrial capacity. Since the Appellant had no industrial capacity left to lose, the Commission was correct in refusing to reopen the Appellant’s claim for additional benefits____”

Appellant seems willing to accept that proposition in a case where the claimant has been fully compensated for the permanent total disability. But where, as here, he has not been so compensated because only part of the initially-found permanent total disability resulted from a compensable accident, there was some compensable industrial capacity left to lose and if he loses it because of a worsening of accidental injury, he ought to be compensated for that additional disability. It is like, he says, being more than 100% disabled, which, though defying ordinary logic, is possible under Workers’ Compensation law. See, for example, Giant Food v. Coffey, 52 Md.App. 572, 451 A.2d 151 (1982), cert. denied, 295 Md. 283 (1983). In effect, he contends that the initial finding of permanent total disability was a misnomer—that he may have been 100% disabled at the time by reason of the combination of medical problems but that he was not “permanently totally disabled” because he was not compensated for such a disability.

We begin our discussion by recalling that the intent of the General Assembly in enacting the Workers’ Compensation Act was “to protect workers and their families from [457]*457hardships inflicted by work-related injuries,” to “provide workers with compensation for loss of earning capacity resulting from accidental injury, disease or death arising out of and in the course of employment____” Queen v. Agger, 287 Md. 342, 343, 412 A.2d 733 (1980). See also Edgewood Nursing Home v. Maxwell, 282 Md. 422, 426, 384 A.2d 748 (1978). The Act is to be construed “liberally to effectuate its benevolent purposes,” Keene v. Insley, 26 Md.App. 1, 11, 337 A.2d 168 (1975) and cases cited therein, and, in accordance with that view, uncertainties in the law are to be “resolved in favor of the claimant.” Howard Co. Ass’n, Retard. Cit. v. Walls, 288 Md. 526, 530, 418 A.2d 1210 (1980).

Although there is some earlier case law reflecting the view that “total disability” means the “incapacity to do work of any kind,” see, for example, Richard F. Kline, Inc. v. Grosh, 245 Md. 236, 243-44, 226 A.2d 147 (1967), the current view is that the term is not to be taken so literally. In Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 473-74, 265 A.2d 871 (1970), the Court made clear, though in dicta, that it does not denote “utter and abject helplessness,” or an inability to do work of any kind, or even an inability to carry on some gainful employment. Adopting the concept enunciated in a Minnesota case, the Court construed the term as meaning only an inability to perform services “other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist____” Id. at 474, 265 A.2d 871, quoting from Lee v. Minneapolis St. Ry., 230 Minn. 315, 41 N.W.2d 433, 436 (1950). In Dent v. Cahill, 18 Md.App.

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Related

Edgewood Nursing Home v. Maxwell
384 A.2d 748 (Court of Appeals of Maryland, 1978)
Babcock & Wilcox, Inc. v. Steiner
265 A.2d 871 (Court of Appeals of Maryland, 1970)
Keene v. Insley
337 A.2d 168 (Court of Special Appeals of Maryland, 1975)
Subsequent Injury Fund v. Thomas
342 A.2d 671 (Court of Appeals of Maryland, 1975)
Bullis School v. Justus
377 A.2d 876 (Court of Special Appeals of Maryland, 1977)
Queen v. Agger
412 A.2d 733 (Court of Appeals of Maryland, 1980)
HOWARD CTY. ASS'N, RETARD. CIT. v. Walls
418 A.2d 1210 (Court of Appeals of Maryland, 1980)
Giant Food, Inc. v. Coffey
451 A.2d 151 (Court of Special Appeals of Maryland, 1982)
Richard F. Kline, Inc. v. Grosh
226 A.2d 147 (Court of Appeals of Maryland, 1967)
Dent v. Cahill
305 A.2d 233 (Court of Special Appeals of Maryland, 1973)
Lee v. Minneapolis Street Railway Co.
41 N.W.2d 433 (Supreme Court of Minnesota, 1950)

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579 A.2d 1219, 84 Md. App. 453, 1990 Md. App. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potter-v-southern-maryland-electric-cooperative-inc-mdctspecapp-1990.