American Airlines Corp. v. Stokes

MOYLAN, Judge. The appellee, Lewis E. Stokes, allegedly sustained an injury to his back while working for the appellant, American Airlines Corporation. The appellee filed a claim with the Workers’ Compensation Commission. The Commission disallowed the claim and the appellee appealed to the Circuit Court for Anne Arundel County.

A jury there decided in the appellee’s favor and the appellant has brought the present appeal. On appeal, there is raised the single claim that the trial court erroneously denied the appellant’s Motion for Judgment Non Obstante Veredicto. ³⁵³ At the circuit court level, the appellee’s appeal from the Workers’ Compensation Commission was what is referred to as an essential trial de novo. In the circumstances, such as here, where the claimant has lost before the Commission and then appeals to the circuit court, the nature of such an essential trial de novo was discussed by us in General Motors Corp. v. Bark, 79 Md.App. 68, 79-80 , 555 A.2d 542 (1989): If the claimant loses before the Commission and then appeals to the circuit court, the ... claimant has the burden of producing a prima facie case before the trial court, lest he suffer a directed verdict against him, just as he, as the original proponent, had that same burden before the Commission .... The claimant has, moreover, the same burden to persuade the trial court by a preponderance of the evidence that his claim is just as he had to persuade the Commission in the first instance.

The appellee, as the claimant, obviously carried his burden of persuasion at the circuit court level, for the jury rendered a verdict in his favor. The pertinent question before us, however, is whether the appellee carried his burden of initial production so as to have entitled him even to have the jury consider the case. If the appellee failed to meet that burden of production, the trial court committed error in denying the appellant’s Motion for Judgment N.O.Y. On August 5, 1994, while employed by the appellant as a crew chief at Baltimore-Washington International Airport, the appellee was loading and unloading baggage from an American Eagle plane. During the process, the appellee experienced “tightness in his back.” The appellee did not, however, report the incident to his supervisors because he “didn’t think anything of it at the time.” Despite the continued feeling of tightness in his lower back, the appellee returned to work on the next day, August 6.

After clocking in, the appellee attempted to find out whether his crew had arrived for work. After being informed that they had not yet arrived, the appellee informed the ticket agent assigned to the flight that he was not feeling well and was going home. The appellee then left the airport and returned home. ³⁵⁴ After learning of the appellee’s sudden departure, agents for the appellant called the appellee and informed him that he was placed on “doctor’s note” leave. That required the appel-lee to obtain a doctor’s note before being allowed to return to work.

On August 8, the appellee went to his chiropractor in Nashville, Tennessee, 1 for the purpose of receiving medical treatment for his back. After receiving treatment, the appel-lee was cleared by his chiropractor to return to work. The appellant, however, refused to permit the appellee to return to work until it received a doctor’s clearance. The appellant does not classify chiropractors as doctors.

The appellant then sought the care of Dr. Raymond D. Drapkin, an orthopedic doctor. On December 29, the appellee submitted a Notice of Employee’s Claim to the Worker’s Compensation Commission (Commission) relating to the August 5 accident. On February 28, 1995, a hearing was held and the Commission disallowed the claim. The appellee appealed that decision to the Circuit Court for Anne Arundel County and there requested a jury trial.

On September 3, 1996, a jury trial was held. At the close of the appellee’s case-in-chief, the appellant moved for a judgment based on the appellee’s failure to produce expert medical testimony to prove causation. The trial court denied the motion. At the close of the entire case, the appellant again moved for a judgment on the same grounds.

Again, the court denied the motion. 2 ³⁵⁵ On September 5, 1996, the jury reversed the Commission’s decision, finding that the appellee had sustained an accidental injury arising out of and in the course of employment and that the injury resulted in the appellee’s becoming disabled. The appellant then moved for judgment notwithstanding the verdict. The trial court, in a seven-page memorandum and order, denied the appellant’s motion. This appeal was then noted.

The appellant’s contention is that the requested Judgment N.O.V. should have been granted in its favor. The appellant argues its entitlement to the Judgment in two regards: 1) that the evidence of causation was not legally sufficient because of the absence of expert medical testimony establishing causation on a complicated medical question and 2) that the evidence the appellee suffered an accidental injury arising out of and in the course of his employment as a result of an unusual occurrence or condition of employment was not legally sufficient. We direct our attention first to the issue of whether causation was a complicated medical question. In S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357 , 689 A.2d 1301 (1997), we considered at great length the issue of when a question of causation presents a complicated medical issue requiring expert medical conclusions.

We surveyed all of the cases from the Court of Appeals and from this Court, including both those finding that certain issues were complicated medical questions and those finding that other issues were not. 114 Md.App. at 371-81 , 689 A.2d 1301 . We then attempted, at least in a rough sense, a general synthesis of that body of case law: To the extent to which we can distill any general wisdom out of the case law, it seems to be this. A genuine jury issue as to the causal relationship between an earlier injury and a subsequent trauma may sometimes be generated, even in the absence of expert legal testimony, when some combination of the following circumstances is present: 1) a very close temporal relationship between the initial injury ³⁵⁶ and the onset of the trauma; 2) the manifestation of the trauma in precisely the same part of the body that received the impact of the initial injury; 3) as in Schweitzer v. Showell [ 19 Md.App. 537 , 313 A.2d 97 (1974)], some medical testimony, albeit falling short of a certain diagnosis; and 4) an obvious cause-and-effect relationship that is within the common knowledge of laymen. Conversely, the causal relationship will almost always be deemed a complicated medical question and expert medical testimony will almost always be required when one or more of the following circumstances is present: 1) some significant passage of time between the initial injury and the onset of the trauma; 2) the impact of the initial injury on one part of the body and the manifestation of the trauma in some remote part; 3) the absence of any medical testimony; and 4) a more arcane cause-and-effect relationship that is not part of common lay experience (the ileitis, the pancreatitis, etc.) 114 Md.App. at 381-82 , 689 A.2d 1301 .

In the last analysis, however, we concluded that the issue is too elusive to permit of any mathematical formula or hard and fast rule and that the ultimate appellate determination that will have to be made on a case-by-case basis will be in some measure an inevitably subjective judgment call: When all is said and done, we are perhaps reduced to a truism: the stronger the case for the causal connection even absent expert medical testimony, the lesser the need for such testimony; the weaker the non-medical case for the causal connection, the greater the need for such testimony. There is more involved, of course, than a simple inverse proportion between the strength of the non-medical-expert case of causation and the need for expert medical testimony.121 Some questions of causation might involve medical knowledge so recondite that expert testimony would always be required. Other questions of causation would not. There can be no hard and fast rule controlling all cases.

It does appear clear, however, that when there is a genuine issue as to whether there is a causal connection between an ³⁵⁷ earlier injury and a subsequent disability, in the majority of cases it will be a complicated medical question requiring, as a matter of law, expert medical testimony. [2] Is it possible that all the juridical profundities of legal mandarins, pundits, and poo-bahs have produced something that could have been as well said by a bright fifth grader? “If it’s needed to prove your case, you have to have it; if it isn’t, you don’t.” 114 Md.App. at 382-83 , 689 A.2d 1301 (Emphasis supplied). On the critical issue of causation between the tightness in the appellee’s back experienced on August 5, 1994 and the subsequent back condition that was the basis for his claim to the Workers’ Compensation Commission, the appellee presented no expert medical evidence. The subsequent back condition was described by the appellee’s treating physician as “lumbar radiculopathy 3 and a chronic lumbosacral strain.” On the basis of that diagnosis, the jury awarded the appellee “temporary total disability benefits from August 5, 1994 through March 20,1996, inclusive.” He presented his own lay testimony that, despite earlier back problems, he had been essentially free of pain for several years prior to August 5, 1994. He described feeling tightness when he lifted a piece of luggage on August 5.

He described tightness in his back the following day, sufficient to send him home from work. He further described general discomfort in that area of his back persisting until the time he filed his claim. The proffered significance was essentially that of “Post hoc; ergo propter hoc. ” His primary treatment for his back ailment was from Dr. Raymond D. Drapkin. Dr. Drapkin did not testify but his medical records were introduced into evidence.

Although Dr. Drapkin described the treatment he had administered, he offered no opinion as to the causal relationship between the August 5 incident and the subsequent condition. ³⁵⁸ The appellee strains to attribute the requisite status of expert medical testimony to a snippet of cross-examination of the appellant’s expert, Dr. Edward R. Cohen, introduced in the form of a video-taped deposition. Specifically, the appellee seeks solace in two words of response in the following portions of the deposition of Dr. Cohen to establish the connection: Q: Is it possible or is it probable that Mr. Stokes could have aggravated a pre-existing condition or that his preexisting degenerative condition by lifting bags on August the 5th of 1994? A: Sure. * * * * Q: As I understand your testimony, it’s your testimony within a reasonable degree of medical certainty that the activity of August 5th, 1994, may have activated [aggravated?] this pre-existing condition? A: Sure.

(Emphasis supplied). That does not constitute expert medical testimony with the required degree of medical certainty for several reasons. In the first place, even the strained significance attributed to the exchange by the appellee, to wit, that Dr. Cohen is agreeing with appellee’s counsel, does not establish that the condition that was the basis for the appellee’s Workers’ Compensation claim was the result of any aggravation that occurred on August 5. The exchange can well be read as referring to nothing more weighty than that the tightness in the back experienced on August 5 itself was an aggravation of the long history of preexisting back problems.

Without a prior history of back problems, the lifting of August 5 might well not have been enough in itself to have caused discomfort. The unillu-minated exchange as readily meant 1) that the discomfort of August 5 was the effect of what had happened before as 2) that the experience of August 5 combined with the history was the cause of what came after. Unless such a temporary aggravation had a lasting effect so as to have been an effective cause ³⁵⁹ of the subsequent condition, a mere temporary aggravation on that single day, or for a period of several days, lacked causative significance. Our reading of the deposition of Dr. Cohen in full context, moreover, causes us to place his casual and monosyllabic responses to those fragments of cross-examination in a far less significant light.

He had already testified, with requisite medical certainty, that there was no causative relationship between the minor strain of August 5 and the subsequent condition. When being asked about alternative possibilities, he simply responded with almost cavalier disdain, “Sure, anything is possible.” He was not testifying to that effect. He was not wilting or wavering under the hammer blows of cross-examination. He was simply verbally fencing with his cross-examiner: “Sure, other things are possible, but it’s not my opinion; I’ve already told you what my opinion is.” That is all that can reasonably be read into that exchange.

We hold that under the circumstances present in this case the cause-and-effect relationship between the incident of August 5 and the subsequent back condition was a complicated medical question requiring, as a matter of law, expert medical evidence. It is as important, perhaps, to note what we are not holding as to note what we are holding. We are not necessarily holding (we, indeed, are intimating nothing in that regard) that every cause-and-effect relationship between a back strain on one date and the condition of an injured back some four or five months later would always present a complicated medical question calling for expert medical evidence. If the two phenomena of the putative cause and the putative effect were before us in a vacuum, with no plausible alternative cause needing to be discounted, the cause-and-effect relationship might well be permissibly inferable without medical testimony, particularly where the earlier incident and the later condition involved the same part of the body.

We intimate nothing with respect to such a situation, however, for that is not the set of circumstances before us in this case. ³⁶⁰ The putative cause and the putative effect in this case, however, do not exist in a vacuum. There are no less than three significant additional circumstances that escalate the issue of causation here into a more complicated medical question. In the first place, this was an appeal to the circuit court from a decision of the Workers’ Compensation Commission. The Commission expressly found that there was no causal connection between the August 5 incident and the subsequent disability: The Commission finds on the first and second issues that the claimant did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on August 5, 1994; and finds that the disability of the claimant is not the result of the alleged accidental injury; therefore, the Commission ... will disallow the claim filed herein.

On appeal to the circuit court, the prior decision of the Workers’ Compensation Commission is treated as being presumptively correct. One of the procedural incidents of such a presumption is that the fact finder at the circuit court level will be informed of the earlier decision and of its presumptive correctness and will be entitled to give it evidentiary significance. As we explained in S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 366 , 689 A.2d 1301 (1997): General Motors Corp. v. Bark noted that one difference between a true trial de novo and an essential trial de novo is that in the latter, one does not treat the adjudication appealed from as if it had never occurred. It is, rather, the case that the presumptively correct outcome of that adjudication is admissible as an item of evidence and is the proper subject of a jury instruction.

Holman v. Kelly Catering, 334 Md. 480 , 639 A.2d 701 (1994). It is an evidentiary fact that may well tip the scales of persuasion. (Emphasis supplied). A second significant additional factor is that the putative cause and putative effect did not exist in a vacuum, to wit, in ³⁶¹ the total absence of any other plausible explanation for the effect.

The appellee had a long history of chronic back problems that presented a far more likely explanation for his ultimate disability than the modest strain he suffered on August 5. Much of that history was offered by the appellee himself. He testified that, since being hired by the appellant in 1967, he had injured his lower back numerous times. Q: All right.

Now, before coming to BWI in July of 1994, had you ever injured your back? A: Yes. Q: When was the first time you injured your back? A: In 1973. * * $ * Q: After the first incident in 1973, did you have any further problems with your back?

A: Yes, I did. I had problems with my back in ’74, ’75, ’76 and I believe it was in ’77 when I finally submitted to the medical board to be placed on restrictive duties ... * * * ❖ Q: Did you have a problem with your back in 1987? A: Yes.... sis * * * Q: What affect if any did that [the 1987 event] have on your back? A: I re-injured my back. $ * * $ Q: Did you have any off the job incidents where you injured your back at any time after 1987?

A: Yes, in ’92 while driving