Bullis School v. Justus

Melvin, J., delivered the opinion of the Court. In July 1973, the appellee, John J. Justus, Jr., sustained an accidental injury to his right leg (knee) arising out of and in the course of his employment with the appellant, The Bullís School. Proceedings before the Workmen’s Compensation Commission resulted in an award for permanent partial disability (“50% loss of use of the right leg (knee)”). Dissatisfied with the award, Justus appealed to the Circuit Court for Montgomery County, where he claimed that the accident resulted in his permanent total disability and not merely a permanent partial disability of his right leg.

The case was tried before a jury (Judge John J. Mitchell presiding) on two issues. Issue No. 1 was: “Is John J. Justus, Jr. permanently and totally disabled as a result of the personal injury to his right leg arising in and out of the course of his employment on or about July 25, 1973?” The jury’s answer was “YES”. In this appeal, the appellants (The Bullís School and its insurer) contend that Judge Mitchell committed reversible error in four respects: 1. “The trial court erred in denying appellants’ motion for a directed verdict and submitting the case to the jury on the issue of permanent total disability. ⁴²⁵ 2. “The trial court committed reversible error in allowing the testimony of a non-treating physician. 3. “The trial court committed reversible error in allowing the testimony of a non-treating lay vocational rehabilitation expert. 4. “The court erred in instructing the jury on permanent total disability”. Directed Verdict Appellants contend that the evidence was not legally sufficient to warrant a finding of permanent total disability and that issue should, therefore, not have been submitted to the jury.

We disagree. It is well settled that in workmen’s compensation cases, as in other civil cases, the courts apply the general rule that before a motion for a directed verdict can be granted against a claimant, the court must assume the truth of all the evidence and fairly deducible inferences therefrom tending to sustain the claim. If there is any evidence from which a rational conclusion favorable to the claimant may be drawn, the weight and value of such evidence should be left for the consideration of the jury. Superior Builders v. Brown, Inc., 208 Md. 539 , 119 A. 2d 376 (1956); see also Jewel Tea Co. v. Blamble, 227 Md. 1 , 174 A. 2d 764 (1961); Richard F. Kline, Inc. v. Grosh, 245 Md. 236 , 226 A. 2d 147 (1967); Ackerhalt v. Hanline Bros., Inc., 253 Md. 13 , 252 A. 2d 1 (1969).

In Dent v. Cahill, 18 Md. App. 117 , 305 A. 2d 233 (1973), Judge Gilbert (now Chief Judge) cited and followed the dicta set out by the Court of Appeals in Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468 , 265 A. 2d 871 (1970), and held it to be a correct statement of the Maryland law on permanent total disability. The dicta referred to is found at pp. 473-474 of Babcock & Wilcox where the Court of Appeals, speaking through Judge Finan, said: “Professor Larson has an excellent discussion of ⁴²⁶ the meaning of ‘total disability’ in 2 Workmen’s Compensation Law, § 57.51: “Total disability” in compensation law is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. The task is to phrase a rule delimiting the amount and character of work a man can be able to do without forfeiting his totally disabled status.

The rule followed by most modern courts has been well summarized by Justice Matson of the Minnesota Supreme Court in the following language: “An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.” (Lee v. Minneapolis St. Ry., 230 Minn. 315 , 41 N.W.2d 433, 436 (1950). See also Kline, Inc. v. Grosh, 245 Md. 236, 246 , 226 A. 2d 147 (1965), and Petrone v. Moffat Coal Co., 427 Pa. 5 , 233 A. 2d 891, 893-894 (1967).” Applying the above principles to the evidence in this case, we think the motion for directed verdict was properly denied. The record reveals that Justus, age 44, dropped out of school after beginning to repeat the seventh grade. He has “a problem” with reading and writing.

Sometime after leaving school, he worked at a gasoline service station for eighteen years, pumping gasoline and making minor mechanical repairs to motor vehicles. He then “went on the ⁴²⁷ Maryland Park Police”, where, according to the testimony of one witness, “he was transferred about quite a bit in an effort to find a job that he could do satisfactorily, and after three years of this he was so embarrassed that he quit”. After that he was “a maintenance man” for a cemetery (“Digging graves, putting markers in, cutting grass”) for approximately two and a half years when he quit because he couldn’t get along with the foreman. About 1971, he was hired by The Bullis School “to drive a school bus in the morning and in the afternoon and in between time he was to do general custodial and maintenance work”.

In addition, he performed janitorial duties at night in the school’s classroom building. The accidental injury, in July 1973, occurred when his right knee was cut by the blade of a rotary lawn mower at the school. The knee was severely damaged, necessitating four operations, and resulting in his having to wear a leg brace most of the time. His knee pains him “continually” and frequently “gives way” on him even while wearing the brace.

He is unable to extend his leg and walks with a limp. There is medical evidence that the pain and loss of mobility are permanent and will increase as he gets older. As a result of the accident he has developed osteomyelitis in the knee, a condition described as a “permanent” “infection and drainage from the bone” caused by bacteria having “gotten in the bone itself”. There is further medical evidence that he cannot stand for periods beyond “an hour, an hour and a half at a time”.

After that period of time, “[h]e would have to sit down or stop doing what he is doing ... for as much as two, three hours, sometimes longer if he began to get swelling in the area before he could go about doing what he would have to do”. Justus returned to The Bullis School in April, 1975, but because of his condition was unable to perform any of the duties for which he was originally employed. The school, nevertheless, kept him on its payroll as a “maintenance supervisor” to supervise the work of the two employees who were hired after his accident in July 1973. His wife testified that he was not “able to do the supervisory work ....

I ⁴²⁸ do most of the work like climbing the ladder. I go out and cut the grass for him. I try to help him in all his work He works an hour a day and comes in and rests. He can’t keep it up.

He’s so weak all the time”. At the time of the accident in 1973, Justus weighed 189 lbs, and was in “A-l health”. At the time of trial he weighed 139 lbs. Two of the school’s answers to interrogatories, introduced in evidence, lend substance to appellee’s argument that, considering his condition, the job of “maintenance supervisor” was “created” for him by the school under a “special set of circumstances”: “5.

Provide a detailed statement of your contention as to the type of employment Claimant is capable of obtaining and the facts upon which you base your contention. ANSWER: At the present time, The Bullis School has Mr. Justus working as a supervisor for new employees who have been hired to take over jobs that he was responsible for prior to the accident. The Administration at The Bullis School does not have any high hopes of the Claimant obtaining a job elsewhere due to his lack of schooling, and their belief that he does not know how to read or write to any degree and his lack of technical skills of any sort. 6. State in detail your contention as the type of activities and movements that the Claimant is able to engage in, the type of activities and movements he is not able to engage in, and the facts upon which you base your contention.

ANSWER: The Claimant was originally hired to perform a three-fold capacity for The Bullis School, namely as a janitor in the school buildings at night, as a bus driver and as a general maintenance man. He is not capable of performing any of the above activities at this time in regards to the purposes for which he was hired and that he cannot move to scrub and wax floors, cannot drive a bus or tractor, ⁴²⁹ nor engage in any activity where it would require standing and the use of his injured leg.” (Emphasis supplied). Daniel Mauchline, a well qualified vocational and educational consultant in full time private practice, testified that in his expert opinion Justus was not “employable in a competitive industrial situation”. When asked the basis for that opinion, he testified as follows: “Q. What is the basis for your expert opinion that he is not employable in a competitive labor market?

A. From a rehabilitative standpoint, you have to adopt a global view and we have a number of problems here not the least of which is physical problems. We have limited intellectual ability. We have illiteracy and extremely poor manipulative ability. “We were to consider this gentlemen for secondary jobs, jobs which you can perform from an essentially seated position. What we have to do is to think in terms of clerical jobs, secondary fact jobs or related activities.

Even the simplest clerical activities, by a combination of illiteracy and poor intellectual function, secondary fact work is ruled out because of the extremely poor manipulative ability which does not require a high degree of skill and is simply a job which has to be performed repetitively, rapidly and accurately. The measurements of the manipulative ability, it would be unreasonable to expect this individual to survive at such an occupation.” Mauchline further opined that in the Washington Metropolitan area “there is no market whatsoever” “for a person with Mr. Justus’ limitations in the field of general maintenance and supervision work”. He explained: “Q. (By Mr. Rowan) What is the basis for that opinion?

A. A general maintenance supervisor, number one, has to be capable of doing much of the work himself. He can’t rely entirely on the ⁴³⁰ maintenance crew. They have normally a tremendous amount of turnover in these jobs. “The maintenance foreman will frequently have to go out and make plumbing repairs which would require kneeling, lying down on the floor. He would frequently have to climb ladders to replace light bulbs, repair window sashes.

Additionally, in almost every instance, the maintenance supervisor will write out written work orders for the employees to follow when they do the job and return these when the job is done so there is evidence that things were repaired. “We have here physical limitations which would proscribe the physical demands of the job and we have literacy problems which would obviate the possibility of preparing work orders.” We conclude that, even though the appellee was employed at the time of trial, the evidence as a whole, viewed in the light most favorable to the appellee, was legally sufficient for the jury to find that the 1973 accident caused him to be “so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist” and that, therefore, he comes within the legal definition of one who has suffered permanent total disability. Babcock & Wilcox v. Steiner; Dent v. Cahill, both supra. See also Mureddu v. Gentile, 233 Md. 216 , 196 A. 2d 82 (1964), for the proposition that a scheduled loss of use, under Code (1957, 1964 repl. vol., 1976 cum. supp.), Art. 101, § 36 (3), may support a finding of permanent total disability under § 36 (1) of Art. 101, if the evidence is sufficient to show permanent total disability in fact. Testimony of Nontreating Physician Dr. Gerald D. Schuster was called to testify on behalf of the appellee.

Dr. Schuster had examined the appellee on two occasions prior to trial. On the ground that he was a ⁴³¹ nontreating physician, appellants objected to the following question asked on direct examination: “Would you tell us the results of your examination starting with the chief complaints elicited from him?” After the objection was overruled, Dr. Schuster answered: “The patient was complaining about his right knee. He stated that he had constant pain in the knee. He also noted pain in the right hip.

He stated that he walked with a limp, was fearful of putting weight on his knee as it had buckled on him a number of times and had locked on occasion. This occurred mostly when he was sitting down as well as being up on his feet. He stated he wore a knee cage most of the time. He has been unable to work at his regular job since the accident and has been doing some supervisory work.” Prior to the decision of the Court of Appeals in Beahm v. Shortall, 279 Md. 321 , 368 A. 2d 1005 (1977), it was firmly established in this State that the testimony of a nontreating physician relating the “patient’s” statements made to him concerning his symptoms and subjective complaints was inadmissible as a violation of the hearsay rule.

See Parker v. State, 189 Md. 244, 249 , 55 A. 2d 784 (1947); Candella v. Subsequent Injury Fund, 277 Md. 120, 123-124 , 353 A. 2d 263 (1976). In Beahm , the Court recognized the criticism of this restrictive “rule of Parked’, decided not to adhere to it, and