Appeal from the Circuit Court for Wicomico County; Taylor, J.
Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
This is an appeal from the judgment of the Circuit Court for Wicomico County affirming the order of the Workmen's Compensation Commission dated June 29, 1961, whereby the employer and insurer were directed to pay compensation for additional temporary total disability from December 7, 1960, to April 1, 1961, inclusive.
The sole question involved is whether the claimant is entitled to receive compensation for temporary total disability pursuant to Code (1951), Article 101, § 35 (2), amended by Chapter 49 of the Acts of 1954, for a period more than six calendar years from the date of the injury, or does the six year limitation period of § 35 (2) refer to six disability years.
Ogie Francis Miles, claimant and appellee herein, an employee of Kenneth P. Austin, trading as Pineland Lumber Company, sustained an accidental injury arising out of and in the course of his employment on December 15, 1954. At that time one of the appellants, Nationwide Mutual Insurance
Company (formerly Farm Bureau Mutual Automobile Insurance Company), was the compensation insurer of the employer. Thereafter Austin incorporated the business, which was formerly operated by him as an individual but which is now known as Pineland Lumber Company, Inc., the other appellant, which took over the assets of the business and assumed its liabilities. Pursuant to orders of the Workmen's Compensation Commission, Nationwide paid various awards for temporary total disability from time to time to the claimant for the injuries sustained, from December 20, 1954 until June 12, 1960.
The appellee's right to additional compensation for temporary total disability, if any, stems from the Act as it stood in 1954, when he was injured. A. G. Crunkleton v. Barkdoll, 227 Md. 364, 370, 177 A.2d 252. Specifically Code (1951) Article 101, § 35 (2), amended by Chapter 49, Acts of 1954, (now Code (1961 Cum. Supp.) Article 101, § 36 (2)) read as follows:
"(2) (Temporary Total Disability.) In case of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance thereof, but not to exceed a maximum of Thirty-five Dollars per week, and not less than a minimum of Fifteen Dollars per week, unless the employee's established weekly wages are less than Fifteen Dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages; but in no case to continue more than six years from the date of the injury or to exceed Five Thousand Dollars in the aggregate. Nothing in this Act shall be construed or applied to affect or change the law as to any such injury or strain which occurred prior to the effective date of this Act." (Italics supplied.)
The Workmen's Compensation Commission and the court below construed the phrase "but in no case to continue more than six years from the date of the injury" to mean six benefit or disability years rather than six calendar years from the
date of the injury. We have not been referred to any case in this state construing this section as it relates to the question before us, nor have we found any. However, in the case of Raven Red Ash Coal Corp. v. Absher (Va.), 149 S. E. 541, the language of the limitations provisions of the Virginia Workmen's Compensation law, therein construed, was almost identical to § 35 (2) supra. That court, in reversing an award by the Virginia Industrial Commission, held that the act permitted recovery only for a period of 300 weeks from the date of injury, regardless of an intervening period when the employee appeared to have recovered and during which no payments were made. The court went on to say:
"Uncertainty and confusion would follow if the judgment were upheld. Indeed, it would be difficult to say when liability would end. If a man was totally disabled temporarily, and on account thereof was paid compensation for a year, and then apparently made a complete recovery, he might 40 years afterwards, if partial disability developed from his original injury, again successfully appeal for relief. Such a ...