Alexander v. Montgomery County

ROBERT M. BELL, Judge. Charles Alexander, appellant, appeals from the judgment of the Circuit Court for Prince George’s County denying his motion for a judgment N.O.V. He asks two questions: 1. Whether the lower court committed reversible error in not granting appellant’s Motion for Judgment N.O.V. where there was legally insufficient evidence for the jury to find that appellant first reached maximum medical improvement on January 16, 1987, given the uncontroverted expert testimony of appellant’s treating physician that appellant had first reached maximum medical improvement on February 28, 1988? ²⁷⁸ 2. Whether the trial court committed reversible error by reading the portion of the Workers’ Compensation Commission [order] pertaining to when benefits were to begin being paid given the Maryland case law which clearly and specifically prohibits the mentioning to juries of amounts or periods of payments in Workers’ Compensation cases?

(Emphasis in original) We perceive no error and, so, affirm. Appellant filed a claim with the Maryland Workers’ Compensation Commission for an injury he sustained during the course of his employment with Montgomery County, Maryland, appellee. By order dated December 19, 1988, the Commission determined that he sustained 30 percent permanent partial disability, benefits for which were to be paid weekly, “beginning January 16, 1987.” Aggrieved by both the determination of the nature and extent of permanent partial disability and of the timing of the payment of those benefits, appellant appealed to the circuit court. The appeal was heard by a jury, which affirmed the Commission’s order as to when the payment of benefits was to begin.

The jury returned a verdict, however, finding 50 percent disability, rather than the 30 percent found by the Commission. Still aggrieved by the jury’s determination concerning the timing of the payment of benefits, appellant moved for judgment notwithstanding the verdict. It is from the denial of that motion that he appeals. 1. To establish both that his disability exceeded 30 percent and that he reached maximum medical improvement prior to January 16, 1987, appellant played the video tape deposition of his treating physician, Dr. Robert Yiener.

The following portion of that deposition is pertinent to the issue of when appellant first reached maximum medical improvement: Q. Now, doctor, are you familiar with the term maximum medical improvement? A. Yes. Q. Is that a term used in orthopedic surgery? ²⁷⁹ A. Yes. Q. Can you explain to the ladies and gentlemen of the jury what the term means?

A. Well, there are two meanings. One is that the patient has received care or treatment for a condition that has stabilized to the point where further interventional care is not necessary. He has reached a point or she has reached a point of stability in their disease and they have benefited maximally from their interventional medical care. That is my understanding.

Q. Doctor, based upon your education, your experience and your years of training, coupled with your examination of Mr. Alexander, the history given to you, the fact that he did not come to see you between February of [1983] and March of [1984], your review of the x-rays and your evaluations of him, did you form an opinion within a reasonable degree of medical probability as to whether or not Mr. Alexander reached maximum medical improvement on February 29, 1983? Do you have such an opinion? A. Well, as of February 28, 1983, I had advised the patient that I need not check him unless his symptoms warranted. I can only assume that because he apparently was doing reasonably well, he did not seek further care, and that would answer the question of whether or not he had reached maximum medical improvement.

Q. Do I understand you to mean that the fact that he did not come back for a year (after February 28, 1983) and did not seek further medical treatment indicates to you that he had reached maximum medical improvement in that time? A. Yes, it does. Although appellee did not present expert medical testimony, or, for that matter, any medical evidence, contradicting Dr. Viener’s testimony, there was before the jury other evidence pertinent to the issue. There was evidence that, following the injury to his lower back on January 3, 1983, and after receiving treatment from Dr. Viener, appellant ²⁸⁰ returned to work on January 25, 1983.

Thereafter, the record reflects, appellant saw Dr. Viener on February 28, 1983, when, as Dr. Viener testified, he was discharged, with the admonition to seek further .treatment should his condition worsen. According to the evidence, appellant next was seen by Dr. Viener in March, 1984, having worked full time, with no apparent manifestations of his injury, prior to that time. On that occasion, he was hospitalized for a time and part of his treatment included injections of epidural steroids. Released once again from Dr. Viener’s care, this time in April, 1984, appellant returned to work.

He continued without need of further treatment for the next two years. It was not until September, 1986 that he. again was required to seek treatment for his 1983 injury. On this occasion, however, surgery was determined to be necessary. Thus, on October 7, 1988, a lumbar laminectomy was performed.

Finally, following a hearing, the Workers’ Compensation Commission determined that permanent partial disability benefits were to be paid to appellant beginning January 16, 1987. 1 At the conclusion of appellant’s case, appellee moved for judgment arguing: ... the evidence is clear that Mr. Alexander did not reach maximum medical improvement, or his injury did not become permanent until January 16th of 1987, after he had his surgery, which was — and the definition of permanent is reasonable expectation of improvement, and that he could not — he wouldn’t have had the surgery and he didn’t have any reasonable expectation of improvement, and there was no new injury which caused him to suffer this pain in 1984 and then again in 1986. ²⁸¹ Appellant opposed the motion on the basis that the question “when this man reached medical improvement is a medical determination.” Thus, he argued that since Dr. Viener’s testimony was “the only medical evidence that has come into this court room” and that testimony was to the effect that initial maximum medical improvement occurred in February, 1983, the court was obliged to deny appellee’s motion. As he does on appeal, appellant specifically noted that appellee’s expert did not, and, indeed, was not asked to, proffer an opinion as to when appellant reached maximum medical improvement. The court denied the motion for judgment. At the end of appellee’s case, appellant moved for judgment, stating, as grounds, the reasons he proffered in opposition to appellee’s prior motion for judgment.

That motion was also denied, the court ruling: I am going to deny the motion and let you both argue this thing to the jury because I think it is a factual issue for the jury to determine in their minds of whether it was after they had given him the various shots and he was feeling pretty good or whether it was after the operation. And I will allow both of you to argue on that, and I am going to deny the motion. Maryland’s worker’s compensation law recognizes four different compensable results, based upon the quantity and quality of disability caused by a compensable injury. Maryland Code Ann. Art. 101, § 36; Jackson v. Bethlehem-Fairfield Shipyard, 185 Md. 335, 338 , 44 A.2d 811 (1945); Gorman v. Atlantic Gulf & Pacific Company, 178 Md. 71, 75 , 12 A.2d 525 (1940).

They are: (1) permanent total disability, § 36(1); (2) temporary total disability, § 36(2); (3) permanent partial disability, § 36(3); and (4) temporary partial disability, § 36(6). Addressing the difference between these compensable results, the Court of Appeals observed in Queen v. Queen, 308 Md. 574, 585-86 , 521 A.2d 320 (1987): Total, as distinguished from partial, disability occurs when a worker “is so injured that he can perform no ²⁸² services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist.” Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 474 , 265 A.2d 871 (1970) (quoting Lee v. Minneapolis St. Ry., 230 Minn. 315 , 41 N.W.2d 433, 436 (1950)). A temporary, as distinguished from permanent, disability exists “until the injured workman is as far restored as the permanent character of the injuries will permit.” Jackson v. Bethlehem-Fairfield Shipyard, 185 Md. 335, 339 , 44 A.2d 811 (1945). Differentiating between temporary and permanent disabilities, several courts have observed that temporary disability payments are a substitute for lost wages during the temporary disability period, while permanent disability is for permanent bodily impairment and is designed to indemnify for the insured employee’s impairment of future earning capacity.

Thus, these courts indicate that permanent disability is not based solely on loss of wages, but is based on actual incapacity to perform the tasks usually encountered in one’s employment, and on physical impairment of the body and may or may not be incapacitating____(Some citations omitted) In Gorman , the Court of Appeals explicated “that this period of temporary total disability is the healing period, or the time during which the workman is wholly disabled and unable by reason of his injury to work.” 178 Md. at 78 , 12 A.2d 525 . Bearing in mind, these principles as to which the parties are in substantial, if not total agreement, we address the issue before us: the propriety of the court’s ruling on appellant’s motion for judgment N.O.V. As to that, we are mindful that [i]n reviewing a trial court’s grant of a motion for judgment notwithstanding the verdict, the evidence and all reasonable inferences which can be drawn from it must be considered in the light most favorable to the party opposing the