Appeal from the Baltimore City Court; Byrnes, J.
Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.
On August 6 1957 Earle S. Richardson suffered a severe injury to his foot which arose out of and in the course of his employment with the Department of Motor Vehicles. He filed a claim with the Workmen's Compensation Commission, and, after a hearing, was awarded temporary total disability from February 3 1958 to May 27 1959. On April 20 1961, while his claim for permanent partial disability was still pending, the claimant died of non-compensable causes not connected with the prior accident. The widow of the deceased claimant, individually, and the widow and son of the claimant, as administrators of his estate, were substituted as claimants in the proceedings to determine permanent partial disability. On October 9 1961 the Workmen's Compensation Commission found, after a hearing, that the original claimant had sustained a permanent partial disability resulting in 60% loss of the use of his left foot, and ordered that the compensation to which he would have been entitled, if living, be paid to his widow, as
the only surviving dependent of the deceased claimant, under Code (1957), Art. 101, Sec. 36(4) (c), infra. The employer and insurer appealed to the Baltimore City Court, where the award of the Commission was sustained, and they then appealed here.
The only question presented to this Court is whether the claim for permanent partial disability was abated by the death of the original claimant prior to the hearing thereon and the award by the Commission. This turns upon the interpretation to be given Sec. 36(4)(c), supra, which provides, in pertinent part:
"If any employee dies from any cause or causes not compensable under this article, the right to any compensation payable under this subsection and subsections (3) and (5), unpaid at the date of his death, shall survive to his surviving dependents as the Commission may determine * * *" [Subsection (3) provides for compensation for permanent-partial disability.]
While the question raised here has never been ruled on by this Court, the courts of some other states have had the same problem presented to them under their workmen's compensation acts. Several cases have interpreted relevant statutory provisions to allow dependents or administrators of claimants to recover even though no award was made prior to the claimant's death. Recently, in the case of Cureton v. Joma Plumbing & Heating Co., 176 A.2d 799 (N. J. 1962), the Superior Court of New Jersey, Appellate Division, was faced with a problem similar to that before us, in interpreting N. J. S. A. 34:15-12(e), which provides, "In case of the death of the person from any cause other than the accident or occupational disease, during the period of payments for permanent injury, the remaining payments shall be paid to such of his or her dependents [as are covered by the statute] or, if no dependents, the remaining amount due, but not exceeding $400.00, shall be paid in a lump sum to the proper person for funeral expenses". The Appellate Division held that "the right to collect 'the remaining amount due' * * * should not be made to rise or fall upon the mere happenstance of whether the injured employee's claim
petition was decided before or after he died" (p. 801). While this case involved the claim of an administrator, the claimant having died without dependents, the court stated that the right of dependents to payments which the claimant would have received had he lived, "does not depend upon the rendition of an award before the employee dies" (ibid.). However, since the claimant died without dependents, the Appellate Division only permitted the administrator to collect funeral expenses. On appeal, the Supreme Court of New Jersey reversed, allowing the administrator to collect the payments which the claimant would have been entitled to receive had he lived, though only the amount which would have accrued up to the date of the claimant's death. Cureton v. Joma Plumbing & Heating Co., 184 A.2d 644 (N. J. 1962). The Supreme Court of New Jersey reasoned (at p. 649), "The law regards done what ought to be done, and will not permit those who are obligated and should have paid the compensation to obtain advantage of the fortuitous circumstance of the workman's death. * * * Any other result would permit the employer or his insurance carrier to gain an undeserved windfall" and would put a premium upon delay. To the same effect is Russo v. Wright Aeronautical Corporation, 51 A.2d 100 (N. J. 1947).
A like result was reached by the Supreme Court of New York, Appellate Division, in the case of Snyder v. Wickwire Spencer Steel Co., 98 N. Y. S. 2d 1006 (N. Y. 1950), leave to appeal denied 95 N. E. 2d 59 (1950). The New York statute, Work. Comp. Law, Sec. 15, subd. 4, provides: "An award made a claimant under subdivision three [permanent partial disability] shall in case of death arising from causes other than the injury be payable to * * * [surviving wife and children]." This was interpreted by the Appellate Division to mean that "where an injured employee dies from causes unrelated to the accident which caused his injury an award for a schedule loss may be made after his death" (at p. 1007 of 98 N. Y. S. 2d).
In Wisconsin, a statutory provision establishing employer liability for permanent partial disability, Wis. St. 1923, § 102.09 (4) (b), was held in City of Milwaukee v. Roth, 201 N. W. 251 (Wis. 1924), to permit an award to the dependent widow ...