Appeal from the Baltimore City Court; Harlan, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
In this Workmen's Compensation case, the employer and insurer appeal from a judgment of the Baltimore City Court in favor of the claimant based upon a finding by a jury that she had sustained a total permanent disability as a result of an accident arising out of and in the course of her employment. The appellants contend that the trial judge should have directed a verdict in their favor on these two grounds: first, that the evidence not only fails to show that the claimant is unable to do any work of any kind, but affirmatively shows that she is capable of doing work of a sedentary nature and hence is not totally disabled under the Workmen's Compensation Act of Maryland (the Act); and second, even if she were physically incapable of work of any kind, her entire disability is confined to the partial loss of use of one leg, and she is entitled to compensation only for such loss under the schedule contained in Sec. 36(3) of the Act.
The claimant fell and injured one knee in September, 1957, while she was working as a cook at the employer's restaurant. She continued work for a period of one or two months, or possibly longer, and received care first from her own doctor and later from a physician designated by the compensation insurance carrier. In October, 1958, the Workmen's Compensation Commission awarded the claimant compensation for temporary total disability for the period from January 7 to June 2, 1958, and thereafter for permanent partial disability for a 10% loss
of use of her right leg. By March, 1959, her condition had grown worse and she was given a brace and cane. In October, 1959, her compensation award was increased by the Commission to an award for a 35% loss of use of the right leg. In 1961 she filed a petition for a further modification, claiming permanent total disability. This petition was dismissed and she appealed to the Baltimore City Court. While her appeal was pending, she had an operation for the removal of diseased bone and cartilage from her knee. This operation appeared to have checked further deterioration of the knee, but not to have brought about any marked improvement.
There was testimony that the claimant experienced pains in her knee of varying degrees of intensity, that pain increased on standing or walking when the knee would swell, and that she could not even remain seated in one position for long because of the pain. She testified herself that she could not do any work, that she could not sit up for any length of time and do any work, and that she could not sit still for more than twenty minutes.
Dr. Sharp, a medical expert called by the claimant, testified in response to a question as to his prognosis with regard to her condition: "I felt that it was over three years after the injury, that she was maximally improved. I felt she was unable to perform adequately at any gainful occupation requiring standing or walking. I felt the knee condition itself constitutes approximately 50 percent permanent partial disability of the right leg, yet, because of the peculiar nature of the knee and its effect upon her person as a whole, experiencing radiating pains from it throughout the body, as well as its own disabling features, she is prevented from performing any occupation within her capabilities. * * *."
The court inquired whether he was about to get into the realm of psychiatry, and he replied: "It is a final statement as to my opinion, which I have already stated in the first sentence again, about the performance of gainful occupation. It is a statement that I mentioned at first; it is that she is unfit to perform any gainful occupation and is considered permanently, totally disabled as a whole."
On cross-examination, Dr. Sharp was asked what he meant
by her being "prevented from performing any occupation within her capabilities." He replied: "This is a lady who has been doing work of somewhat of a physical nature; she has been a cook, and she has to stand up to do that. That she can not do any longer. If it is possible through leniency of an employer and otherwise to allow her to do something that she can sit and stand and change her position for comfort and not work full time, that might come within her capabilities in addition, but not within her capabilities if it is a full day's work as required by ordinary employers."
Another medical expert whose services were furnished to the claimant by the appellants, did not testify in court, but stated (in part) in a report to the insurance carrier submitted in May, 1961, and contained in the record before the Commission which was offered in evidence: "I find nothing on recent examinations to feel that there is any increase in disability in this case [which he fixed at a 25% ...