In this case, one of a claim under the Workmen's Compensation Act, Code, art. 101, two questions are presented. When a claim for compensation has been disallowed by an order of the State Industrial Accident Commission, on the ground that the workman did not sustain an accidental injury arising out of and in the course of his employment, and no appeal has been taken by the workman from that order and no notice of appeal given by him, within the period of thirty days limited in section 56 concerning appeals, can he then, upon an application to the commission for a reopening of the question, and a refusal of his application, prosecute an appeal within thirty days from that refusal? And a second question is whether, if the appeal is then permitted, the trial court could properly submit to a jury, as a question of fact determinable by a jury under the statute, an issue whether the State Industrial Accident Commission "was justified in its refusal to grant the petition of the claimant, Louis Zabawa, to reopen his claim and to allow him such benefits as he may have been entitled to receive under the facts of this case?"
Zabawa, employed by a manufacturer of soap, claimed that he had been injured while at work, in an effort to lift or push a truck or car loaded with soap; and the fact of injury was disputed.
The first order of the commission, passed after a hearing at which the claimant failed to appear, on May 31st, 1928, disallowed the claim. The claimant then filed a petition to reopen the case, explaining his failure to appear at the hearing; and after a reopening and rehearing the commission, on July 11th, 1928, rescinded its earlier order and passed a new order disallowing the claim on the ground that the claimant did not sustain an accidental injury arising out of and in the course of his employment. No appeal was taken and, of course, no notice of appeal was served on any member of the *Page 666 commission. On September 26th, 1928, a petition for renewal of the hearing in July was filed on behalf of the claimant; and a hearing was held on the petition, testimony was taken from four witnesses, and on November 27th, 1928, the commission by its order denied the petition to reopen the case. And from this order of November 27th 1928, the appeal was taken to the Superior Court of Baltimore City. The employer and insurer moved in that court that the appeal be dismissed, but the motion was overruled.
A jury was sworn to have submitted to them, as provided in section 56, "any question of fact involved in such case," and the court submitted to them the issue drawn as previously stated. The jury answered "no" to that issue, that is, that the commission was not justified in its refusal to reopen the case; and on that answer the commission's decision of November 27th, 1928, was reversed. The present appeal by the employer and insurer is from that judgment entered in the trial court.
The provisions concerning the time for appeals to courts of law (Code, art. 101, sec. 56), are that any employee feeling aggrieved by any decision of the commission affecting his interests under this article may have the same reviewed by a proceeding in the nature of an appeal, and that, "No such appeal shall be entertained unless notice of appeal shall have been served personally upon some member of the commission within thirty days following the rendition of the decision appealed from." And, as this court observed of that limitation of time, inHolland Mfg. Co. v. Thomas,
This general principle must be equally applicable to the statutory allowance of review of any decision of the State Industrial Accident Commission, unless in the Workmen's Compensation Act there is some contrary provision to differentiate it, and we do not see any. Reference is made to section 43 of the act, which expressly provides for a reopening of any claim, for the readjustment or termination of compensation in case of aggravation, diminution or termination of the disability. And in Bethlehem Shipbuilding Corp. v. Simmons,
The provision, in section 54 of the act, for continuing *Page 669 jurisdiction in the commission in all cases, and power to make from time to time such modification or change with respect thereto, as in its opinion may be justified, seems to provide nothing more than a power to reopen, and we do not see that it bears upon the right of appeal.
The fact that additional testimony was produced before the commission, at its hearing on the motion to reopen, seems to the court not to render the decision any other than a decision against reopening. The decision would seem analogous to a refusal to grant a new trial upon newly discovered evidence.
It results from these conclusions that the appeal from the commission's ruling should have been dismissed in the court below, and that the judgment of the court should be reversed and the case remanded for the dismissal now. We deem it proper to add, answering the second question raised, that in the opinion of this court a question whether the commission was justified in its refusal to grant the petition to reopen the claim and allow compensation, is not such a question as is to be submitted to a jury under the act. Section 56 provides that, in reviewing a decision of the commission, the court shall determine whether the commission has justly considered the facts concerning injury, whether it has exceeded the powers granted by the article, whether it has misconstrued the law and facts applicable to the case decided; and upon the hearing the court is, upon motion of either party, to "submit to a jury any question of fact involved in such case." The comprehensive question whether the commission was justified in the decision appealed from is the whole case before the court, rather than a question of fact involved in it. The issues should define the questions of fact to be decided.
Judgment reversed with costs, and case remanded fordismissal. *Page 670