144 A. 339 | Md. | 1929
Lead Opinion
This is an appeal of the Union Shipbuilding Company, employer, from an order of the Baltimore City Court, overruling a motion of the appellant to dismiss an appeal to that court, taken by the appellee in this case from an order of the State Industrial Accident Commission disallowing the claim of the appellee here (appellant below) for compensation from the appellant.
On July 23rd, 1927, Michael Praviewski filed with the Industrial Accident Commission a claim for compensation for an injury due to an accident on or about the 18th day of October, 1926, arising out of and in the course of his employment by the Union Shipbuilding Company, Fairfield, Maryland. On July 29th, 1927, the employer filed its request for a hearing on the claim to determine the following issues: (1) Did employee sustain an accidental personal injury arising out of and in the course of his employment? (2) Failure to report accident within statutory period. (3) Failure to file claim within statutory period. (4) Prejudice. (5) Is present condition of claimant due to an accidental personal injury arising out of and in the course of employment?
Testimony taken before the commission on August 30th, 1927, shows that on October 18th, 1926, the claimant (appellee) was injured while working for the appellant. He was examined and treated by a physician, who advised him to continue working, and he did so until May 21st, 1927, when he claims that, as a result of the injuries sustained on October 18th, 1926, he was obliged to give up his work, and on July 29th, 1927, filed his claim for compensation. On October 27th, 1927, the commission found against the claimant on all of the issues and passed an order disallowing his claim, from which he appealed to the Baltimore City Court.
The appellant (employer), on November 15th, 1927, filed its motion in the Baltimore City Court to dismiss the appeal *414 of the employee on the following grounds: "(1) That the record in this case shows that notice of the alleged injury was not given by the employee appellant to the employer appellee within ten (10) days after the alleged accident, and that the State Industrial Accident Commission did not excuse the employee appellant from the delay in giving the said notice to the employer appellee. (2) That the record shows that the employee appellant did not file his application for compensation with the State Industrial Accident Commission and a report of his physician within thirty (30) days after his alleged disability for which he claims compensation, and the State Industrial Accident Commission did not excuse the employee appellant for the delay in failing to file the said application and report of his physician with the State Industrial Accident Commission within the prescribed time. (3) That the record in this case shows that the failure of the employee appellant to report the said accident and to file his claim and the report of his physician within the required time as heretofore set forth operated to prejudice the employer appellee and the State Industrial Accident Commission so found and did not excuse the employee appellant from filing said notice and claim." The motion to dismiss the appeal was overruled and it is this order which is now the subject of the appeal before this court.
The contention of the appellant is that the refusal or failure of the accident commission to excuse the delay of the claimant in filing his claim for compensation is final and not subject to review. The appellee contends that it was an issue submitted to and passed upon by the commission and is subject to review as any other question of fact.
It is undisputed that the claimant did not file his claim with the commission until nine months after the injury alleged. By section 38, article 101, of the Code, it is provided that in case of injury the employee shall notify the employer within ten days after the accident, and that the failure to give such notice "unless excused by the commission either on the ground that notice for some sufficient reason could not have been given, or on the ground that the *415
State Accident Fund, insurance company or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this article." Section 39 requires the employee to file his claim with the commission "within thirty days after the beginning of his disability for which compensation is claimed, "and failure to do so, unless excused by the commission either on the ground that the insurance carrier or the employer has not been prejudiced thereby, or for some other sufficient reason, "shall be a bar to any claim under this article." In the case ofKeystone Lime Co. v. Kabat,
Of a statute almost identical in form, the Court of Appeals of New York, in the case of Bloomfield v. November,
Again, and very recently, the question was before this court in substantially the form now presented, in the case of Savage Mfg.Company v. Magne,
The issues in the Magne case and in the instant case are substantially the same, the only difference being that in the former case there was no motion to dismiss the appeal from the accident commission to the trial court. In this case the question of the conclusiveness of the action of the commission *417 is before us in the form of a motion to dismiss the appeal, while in the Magne case it was before us in the form of a request for instructions as to whether the notice had been given and claim filed within ten days and thirty days respectively, and whether failure to give such notice and file such claim were prejudicial to the employer. These instructions were submitted to the jury for the determination of the questions of fact therein stated, and this court on appeal declared them to be proper instructions. We are therefore on record as having decided that these are questions of fact to be submitted on appeal under section 56 of article 101 of the Code, as amended by the Act of 1927, ch. 587.
Upon the issues submitted by the employer to the commission, the matters of notice to the employer within ten days, the filing of the claim with the commission within thirty days, and of prejudice, were heard and by the commission decided adversely to the claimant. This then has the commission on record as having decided that the delay of the claimant was prejudicial as a fact, to the employer, and upon this finding the claim was dismissed. In this respect the finding of the commission met the requirements of this court's decision in Keystone Lime Co. v.Kabat, supra. The issue as to whether the injury for which compensation was sought arose out of and in the course of the employment was also submitted and decided against the claimant.
In the case of Dickson Company v. Beasley,
In the case of Vang Construction Company v. Marcoccia,
It is, therefore, the opinion of this court that the appellant's appeal from the order overruling the defendant's motion to dismiss the appeal from the accident commission to the Baltimore City Court was premature, the order appealed from not being final in its nature.
Appeal dismissed, and case remanded with costs to theappellee.
Dissenting Opinion
The statutory provisions limiting the time for an employee's giving notice of his injury and filing his claim for compensation, Code, art. 101, secs. 38 and 39, seem to me to make failure to act within the time limits so clearly a bar to compensation, unless excused by the commission, that a construction which, in the absence of such excuse by the commission, permits the courts on appeal to investigate the failure and lift the bar, must amount to amendment of the statutes. For the purposes of this inquiry the provisions are the same. "Failure to give such notice, unless excused by the commission" on one or the other of two permissible grounds, "shall be a bar to any claim under this article," says section 38. And section 39 provides that failure to file the claim for compensation within the time specified, "unless excused by the commission" for lack of prejudice or some other sufficient reason, "shall be a bar to any claim under this article." *419 A purpose to make the lack of excuse by the commission final could (as I see it) hardly be expressed more clearly and unmistakably. And it is not surprising that the discretion of the commission should thus be made final when we recall that it was the purpose and hope, in the enactment of the Workmen's Compensation Act, that the administration of this law should be withdrawn almost wholly from the courts. It was intended that, for the benefit of injured workmen, the use of the courts, and the delay and expense of litigation, should be avoided if possible.
In the case of Keystone Lime Co. v. Kabat,