Getson v. WM BANCORP

RAKER, Judge. In this workers’ compensation case, the claimant suffered a compensable injury to her right shoulder when she slipped and fell on the ice in her employer’s parking lot on February 4, 1993. The primary question we must decide in this case is whether a shoulder injury, which causes permanent partial disability, is an injury to the arm under Maryland Code (1991 RephVol., 1996 Cum.Supp.) § 9—627(d)(l)(iii) of the Labor and Employment Article 1 or whether permanent partial disability resulting from a shoulder injury is properly classified under § 9-627(k), “Other cases.” We must also decide whether the Court of Special Appeals erred in concluding that the Workers’ Compensation Commission (“Commission”) committed an error of law when it awarded permanent partial disability benefits based on thirty percent loss of industrial use of the body. We shall hold that the Commission correctly categorized claimant’s injury as an “Other cases” impairment and ⁵¹ that the finding of permanent partial disability based on thirty percent loss of use of the body was not error.

The claimant, Patricia M. Getson, sustained an accidental injury to her right shoulder arising out of and in the course of her employment with WM Bancorp. Getson fell on ice in her employer’s parking lot on February 4, 1993, fracturing the right humeral head of her right shoulder. 2 She underwent surgery to repair her rotator cuff and to have inserted a prosthesis in her right shoulder. After the surgery, Getson received six months of physical therapy to regain mobility and strength in her right shoulder. Eventually, in late summer 1993, Getson returned to her position as a bank teller with Respondent WM Bancorp.

She was able to perform most of her duties as a teller, but she could not lift heavy trays of coins, and she had difficulty reaching over a high counter to give customers their money. The claimant completed her course of treatment and was evaluated by two physicians, Dr. Renato Lapidario at the request of the employer and insurer, and Dr. Neil Novin at the request of the claimant. Dr. Lapidario concluded that the claimant sustained an injury to her right shoulder resulting in a twenty percent permanent impairment of her right upper extremity; Dr. Novin concluded that the claimant sustained an injury to her right shoulder resulting in a forty-one percent permanent impairment of her right upper extremity. Getson filed a Workers’ Compensation claim for an accidental injury.

The Commission held a hearing on her claim on October 25, 1994. The issue before the Commission was permanent disability. Concluding that an impairment of the shoulder is considered an impairment of the “whole person,” 3 ⁵² the Commission found that Getson had suffered a permanent partial disability resulting in a thirty percent loss of industrial use of her body as a result of the accidental injury. The employer and insurer petitioned the Circuit Court for Alleghany County for judicial review of the Commission’s order and presented two arguments: first, that the Commission should have decided the case as a loss of use of the arm or upper extremity, not of the whole body, because the Guides for Evaluation of Permanent Impairment 4 , American Medical Association, Guides to the Evaluation of Permanent Impairment (3d ed.1988) (hereinafter AMA Guides), adopted by the Commission as the method of evaluation of permanent impairment, define the arm or upper extremity to include the shoulder; and second, that if the Commission properly classified the shoulder injury as one to the whole body, it should have followed its regulations and converted impairment of the ⁵³ upper extremity to impairment of the body as a whole, in accordance with the conversion tables in the AMA Guides.

The circuit court affirmed the Commission, finding that the Commission properly classified Getson’s injury as an “Other cases” injury under § 9-627(k) and properly apportioned the injury to the body as a whole. The employer and insurer appealed to the Court of Special Appeals. The Court of Special Appeals, in an unreported opinion, affirmed the circuit court in part and reversed in part. The intermediate appellate court held that a shoulder injury is an unscheduled injury, falling within the classification of “Other cases” under § 9-627(k).

The court further held that the Commission improperly used whole body impairment to assess claimant’s permanent partial disability. Reasoning that it is illogical to require evaluating physicians to use the numerical ratings in the AMA Guides but not to require the Commission to do so, the intermediate appellate court held that the Commission failed to abide by its own regulations and, hence, reversed. We granted Getson’s petition for -writ of certiorari to resolve the following question: “Did the Court of Special Appeals err in finding that the Workers’ Compensation Commission had committed an error of law in finding that the Claimant had sustained a 30% disability to her body as a whole?” We must determine whether the Commission properly classified Getson’s injury under the “Other cases” provision of § 9-627(k). In other words, should Getson’s shoulder injury be considered an unscheduled, “Other cases” injury or a scheduled injury to the arm?

Only if the Commission properly classified the injury do we address whether the Commission expressed the degree of impairment in proper form. Section 9-627 governs the classification of injuries for purposes of permanent partial disability compensation. Section 9-627 provides in pertinent part: (a) If a covered employee is entitled to compensation for a permanent partial disability under this Part IV of this ⁵⁴ subtitle, the employer or its insurer shall pay the covered employee compensation for the period stated in this section. ****** (d) (1) Compensation shall be paid for the period listed for the loss of the following: ****** (iii) an arm, 300 weeks; ****** (k) Other eases.—(1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee’s body was impaired as a result of the accidental personal injury or occupational disease. (2) In making a determination under paragraph (1) of this subsection, the Commission shall consider factors including: (i) the nature of the physical disability; and (ii) the age, experience, occupation, and training of the disabled covered employee when the accidental personal injury or occupational disease occurred.

(3) The Commission shall award compensation to the covered employee in the proportion that the determined loss bears to 500 weeks. (4) Compensation shall be paid to the covered employee at the rates listed for the period in §§ 9-628 through 9-630 of this Part IV of this subtitle. The shoulder is not listed among the scheduled body parts in § 9-627. Accordingly, permanent partial disability resulting from a shoulder injury is governed by the catch-all “Other cases” provision of § 9-627(k).

Although this Court has not had occasion to consider the classification of a shoulder injury, the Court of Special Appeals has previously held that an injury to the shoulder is properly ⁵⁵ classified as an “Other cases” impairment. First National Bank v. Sohn, 35 Md.App. 44 , 368 A.2d 1122 (1977); see also R. Gilbert & R. Humphreys, Maryland Workers’ Compensation Handbook § 7.4, at 140 (2d ed. 1988) (‘“Whole body’ injuries to such parts of the body as the back, neck, chest, or shoulder fall within the scope of ‘Other cases.’ ”). Courts in other states with statutes containing distinctions between scheduled and unscheduled injuries similar to the Maryland statute have likewise concluded that shoulder injuries are unscheduled. See, e.g., Dye v. Industrial Comm’n of Ariz., 153 Ariz. 292 , 736 P.2d 376, 378 (1987); Taylor v. Pfeiffer Plumbing & Heating Co., 8 Ark.App. 144 , 648 S.W.2d 526, 527 (1983); Mobley v. Jack & Son Plumbing, 170 So.2d 41, 45 (Fla.1964); Shebester-Bechtel v. Higginbottom, 905 P.2d 1137, 1139 (Okla.Ct.App.1995); Continental Ins.

Co. v. Pruitt, 541 S.W.2d 594, 597 (Tenn.1976). Relying on § 9-721 5 and COMAR 14.09.04, the employer and insurer contend that the General Assembly and the Commission intended to incorporate the AMA Guides ’ terminology and division of body parts into the Workers’ Compensation Act. The AMA Guides do not use the “arm” as a unit of evaluation; instead, the AMA Guides speak in terms of the “upper extremity,” which consists of the hand, wrist, elbow, and shoulder. AMA Guides, supra, § 3.1, at 13.

The employer and insurer maintain that it is improper for the Commission to classify an injury to the shoulder as an “Other cases” injury when the AMA Guides treat the shoulder as part of the upper extremity. Since the evaluating physicians expressed their opinion in terms of “upper extremity,” the employer and insurer argue that an injury to the shoulder should be treated as a scheduled injury to the arm. We disagree. The Commission’s adoption of the AMA Guides as the standard for the evaluation of permanent impairment does not affect § 9-627’s classifications of permanent ⁵⁶ partial disabilities.

The legislative history of the AMA Guides ’ incorporation into Maryland law reveals that neither the General Assembly nor the Commission intended to incorporate the AMA Guides’ definitions of body parts into the workers’ compensation law of Maryland. In the Acts of 1987, chapter 591, § 1, the General Assembly adopted the following provision, then codified as Art. 101, § 36C: (a) In general.—On or before July 1, 1988, the Commission shall adopt guides to be used by physicians to measure and report to the Commission all medical evaluations of permanent impairments, including loss of function, endurance, and range of motion, and pain, weakness, and atrophy. (b) Nature of guides.—The guides to be adopted by the Commission under subsection (a) of this section are regulations under Subtitle 1, Title 10 of the State Government Article. (c) Guides prior to adoption of official guide.—On or after July 1, 1987, and until the Commission adopts guides under subsection (a) of this section, physicians shall use the most recent edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” as amended, to measure all medical evaluations of permanent impairments.

Physicians shall report their findings in accordance with those guides. (d) Additional information prior to official guide.—Until the Commission adopts guides under subsection (a) of this section, a physician, in evaluating a permanent impairment, shall submit to the Commission additional information, including: (1) Pain; (2) Weakness; (3) Atrophy; (4) Loss of endurance; and (5) Loss of function. ⁵⁷ The Commission adopted guides as directed in § 36C(a); COMAR 14.09.04 went into effect December 15, 1988. Like the interim measure enacted by the General Assembly in Article 101, § 36C(e), the Commission also selected the AMA Guides as the method of evaluation that physicians shall use in assessing permanent impairment for workers’ compensation purposes. COMAR 14.09.04 reads: .01 Incorporated Document.

Those provisions of “Guides to the Evaluation of Permanent Impairment” (American Medical Association, 3rd ed.1988) specified in Regulation .02 are incorporated by reference. .02 General Guidelines. A. As evidence of permanent impairment, a party may submit a written evaluation of permanent impairment prepared by a physician. B. When preparing an evaluation of permanent impairment, a physician shall: (1) Generally conform the evaluation with the format set forth in § 2.2 (“Reports”) of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”; (2) Use the numerical ratings for the impairment set forth in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”, provided that a physician is not required to use the inclinometer evaluation technique specified in § 3.3, but instead may use the goniometer technique specified in the “Addendum to Chapter 3”; (3) Include the items listed under the heading “Comparison of the results of analysis with the impairment criteria ...” in § 2.2 (“Reports”) of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”; and (4) Include information on the items required by Labor and Employment Article, § 9-721, Annotated Code of Maryland, which include: ⁵⁸ (a) Loss of function, endurance, and range of motion, and (b) Pain, weakness, and atrophy. C. A physician preparing an evaluation of permanent impairment may include numerical ratings not set forth in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” for the items listed in § B(4) of this regulation.

If the physician does so, the physician shall include in the evaluation the detailed findings that support those numerical ratings. D. When reviewing an evaluation for permanent impairment, the Commission shall consider all the items listed in § B of this regulation. E. The Commission may not approve payment of a physician’s fee for an evaluation that does not comply with this regulation. F. This regulation shall apply to all evaluations prepared on or after July 1,1990.

When the former Article 101 was revised and enacted as Title 9 of the Labor and Employment Article, the provision of § 36C that directed the Commission to adopt guides for medical evaluation of permanent disability and the provision that established an interim guide were deleted as obsolete because the Commission had adopted guides. 1991 Maryland Laws, ch. 8, at 946 (Revisor’s Notes). Section 9-721, the successor to § 36C, provides: (a) In accordance with regulations.—A physician shall evaluate a permanent impairment and report the evaluation to the Commission in accordance with the regulations of the Commission. (b) Contents of evaluation.—A medical evaluation of a permanent impairment shall include information about: (1) atrophy; (2) pain; (3) weakness; and (4) loss of endurance, function, and range of motion. ⁵⁹ As the legislative history illustrates, the General Assembly initially adopted the AMA Guides as an interim method of evaluation for use until the Commission adopted guides for permanent evaluation. The Commission then promulgated COMAR