Kelly v. Baltimore County

MEREDITH, J. William A. Kelly, III, appeals from a judgment of the Circuit Court for Baltimore County that granted summary judgment in favor of his employer, Baltimore County (“the County”), and reversed a decision by the Maryland Workers’ Compensation Commission (“the Commission”). Kelly, a Baltimore County police officer, filed a claim with the Commission after being involved in an accident while operating his police cruiser, which was hit by a drunk driver. Kelly claimed he underwent surgery on his lower back as a direct consequence of that accident, which he claimed aggravated a prior back injury. The County opposed Kelly’s claim for benefits, alleging that Kelly’s surgery stemmed solely from the pre-existing back injury, and not from the employment-related accident.

The Commission ruled in Kelly’s favor. The County challenged the decision of the Commission by filing a petition for de novo judicial review in the Circuit Court for Baltimore County. In the circuit court, the County filed a motion for summary judgment. In its motion, the County claimed the Commission’s decision was incorrect as a matter of law because Kelly failed to submit any medical expert testimony specifically attributing the cause of his back injury to the employment-related accident.

The County argued that Kelly was required to produce expert testimony as to causation because the issue involves a complex medical question. The circuit court granted the County’s motion and entered summary judgment in its favor. Kelly filed an appeal to this Court. Because we conclude that the case should not have been disposed of by way of summary judgment, we shall reverse the decision of the circuit court. ¹³² QUESTION PRESENTED The question before us is whether a circuit court, in a de novo appeal initiated by the employer from a ruling by the Commission in favor of the employee, can, on summary judgment, reverse the ruling of the Commission and enter judgment in favor of the employer if the employee does not produce expert medical testimony as to causation.

Under the circumstances of this case, we hold that it was error for the circuit court to overturn the ruling of the Commission on summary judgment. BACKGROUND On October 24, 2002, Kelly was on routine patrol, driving a marked police car, when he was struck by an oncoming vehicle. The driver of the other vehicle, who was impaired by alcohol, turned the wrong way down a one-way street and crashed into the driver’s side of Kelly’s car. According to Kelly,- as a result of the accident, Kelly re-injured his back, which had been problematic for some time.

He obtained medical care on October 25, 2002, at which time he was diagnosed with a lumbar sprain and placed on modified activity with some restrictions. On October 28, 2002, the County filed a first report of injury, informing the Commission that Kelly’s accident caused him to suffer an injury to his lower back (lumbar and sacral). Subsequently, on January 20, 2003, Kelly filed his own employee’s claim with the Commission, and he also claimed his lower back was injured when his vehicle was struck. On January 27, 2003, prior to the Commission awarding Kelly any compensation for the October 2002 employment-related injury, Kelly underwent surgery for the decompression of a disc in his back.

The Commission issued Kelly an award on February 25, 2003, finding that he had sustained an accidental injury arising out of the course of his employment, and that he was temporarily totally disabled as a result of his injuries. The County was ordered to provide Kelly with weekly compensation dating ¹³³ back to November 3, 2002, and to pay for his medical treatment and other necessary medical services as provided by Md.Code (1957, 2002 RepLVol.), Labor and Employment Article (“L.E.”), § 9-660 through § 9-664, and § 9-689. On April 14, 2003, the County filed issues to be heard by the Commission, questioning whether Kelly’s surgery was causally related to his accident of October 24, 2002. A hearing was held by the Commission on July 31, 2003.

At the Commission hearing, the County argued that the back injury that led to Kelly’s surgery was actually a non-work-related injury suffered in December 2001 while playing basketball. Evidence was presented in the form of medical reports, which indicated Kelly had been receiving treatment since the December 2001 incident for a disc herniation in the same area of his lower back where his 2003 surgery had been performed. The County submitted a letter report from Dr. Stephen R. Matz, a physician hired by the County to conduct an “independent medical evaluation” of Kelly. The County argued that it was Dr. Matz’s opinion that Kelly’s back surgery was not causally connected to the employment-related motor vehicle accident, but instead resulted from his 2001 basketball injury.

Additionally, the County submitted two letters concerning the surgery from Kelly’s treating physician, Dr. Ira Fedder, which the County argued did not expressly connect the surgery with the injury Kelly suffered from the motor vehicle accident. The County argued that Dr. Fedder’s omission of an opinion as to causation was significant. The documentary evidence presented by the County reflected that Dr. Fedder had discussed back surgery with Kelly in September 2002 during the course of treatment for the December 2001 basketball injury. The documents further reflected that Dr. Fedder suggested that, before resorting to surgery, Kelly should first undergo a series of injections, known as selective nerve root block, to see if that procedure would eliminate his back pain. ¹³⁴ Dr. Fedder referred Kelly to Dr. P. Bobbie Dey, who gave Kelly nerve root block injections on the following four dates: October 10, 2002, October 17, 2002, October 31, 2002, and November 7, 2002.

Kelly testified at the Commission hearing that after the October 17, 2002 injection, he was doing well and was not going to receive the third injection. However, after the motor vehicle accident on October 24, 2002, Kelly’s pain returned, and he decided to receive the third and fourth injections. Dr. Dey’s patient reports regarding Kelly were submitted at the Commission hearing. They corroborated that Kelly was experiencing pain when he visited her on October 31, 2002, one week after his involvement in the motor vehicle accident.

Her report from that visit stated: “[T]he patient was 100 percent improved. Recently, the patient had a side impact, work-related motor vehicle accident since which time the pain in his legs have returned. I recommend no streak [sic] duties as a police officer for the [next] 6 to 8 months.” Kelly submitted additional medical records at the Commission hearing regarding the 2001 back injury. He admitted that Dr. Fedder had discussed the possibility of surgery with him prior to the motor vehicle accident that occurred on October 24, 2002, but he asserted that his condition had improved substantially in response to the nerve root injections he received, and that he had ruled out surgery until the accident caused the pain to return.

Kelly argued that, while the motor vehicle accident was not the original cause of his back pain, the accident aggravated the old injury and caused him to need surgery. Kelly also testified that he did not miss any time from work as a result of the December 2001 basketball injury, except for two to three days right after the injury occurred. He testified that he had been in incidents involving fights with suspects since he suffered the original injury, but he had never rein-jured his back until the motor vehicle accident on October 24, 2002. ¹³⁵ The Commission issued a decision in Kelly’s favor, finding: “[T]he accidental injury sustained on October 24, 2002 exacerbated [Kelly’s] pre-existing condition requiring the need for surgery. ... ” The County was ordered to pay for all of Kelly’s medical bills that were related to the January 27, 2003 surgery, and to provide Kelly with compensation for his recovery period following the surgery. The County sought judicial review of the Commission’s decision in the Circuit Court for Baltimore County pursuant to Md. Rule 7-201, and requested a jury trial.

The County then filed a motion for summary judgment, requesting that the court summarily reverse the decision of the Commission and enter judgment in its favor. Relying on the record from the proceedings before the Commission, and without any supplemental evidence offered by way of affidavit or deposition testimony, the County argued that the case involves a complex medical question, which requires the claimant to produce medical testimony to connect the need for surgery and treatment to the employment-related accident. Kelly opposed the County’s motion, arguing that there was sufficient medical evidence in the record before the Commission to support his claim and the Commission’s finding that the surgery was related to the accident. Kelly further asserted that there was a genuine dispute concerning the material fact of whether the aggravation of his back injury and the surgery were causally connected to the motor vehicle accident.

In response to the motion, Kelly offered no supplemental evidence, but instead relied on the evidence in the record from the Commission. Kelly also argued that the Commission’s finding of causation was entitled to a presumption that it was correct. After a hearing, the circuit court, without opinion, granted the County’s motion for summary judgment and entered judgment in the County’s favor. Kelly noted a timely appeal.

JUDICIAL REVIEW In S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357 , 689 A.2d 1301 (1997), Judge Moylan, writing for this Court, de ¹³⁶ scribed the two different procedural modes that can be pursued by a party seeking judicial review of a decision of the Commission: One is pursuant to Labor and Employment Art. § 9-745(e), which replicates the routine appeal process from administrative agency decisions generally. According to that modality, the circuit court reviews the Commission’s action on the record and determines whether the Commission 1) acted within its power and 2) correctly construed the law and facts. The other and more unusual modality is that spelled out by § 9-745(d), which provides for what is essentially a trial de novo. Id. at 364, 689 A.2d 1301 .

Judge Moylan discussed the difference between these two forms of appeal in General Motors Corp. v. Bark, 79 Md.App. 68, 76 , 555 A.2d 542 (1989): [I]t is the first of these appeal modes that requires the circuit judge to determine under Section [9-745(e) ]: 1) “whether the Commission has justly considered all of the facts concerning the injury,” 2) “whether it has exceeded the powers granted it by the article,” and 3) “whether it has misconstrued the law and the facts applicable in the case decided” and then directs him to affirm “the decision of the Commission” if he determines “that the Commission has acted within its powers and has correctly construed the law and facts.” Thus far, there is nothing of a de novo nature involved. Thus far, a review by the circuit court of the record before the Commission would suffice. The statutory direction to affirm an error-free Commission decision would not apply, however, to the alternative appeal mode of de novo trial. Indeed, once the circuit court embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission “correctly construed the law and facts” or not. ¹³⁷ In the instant case, the second form of judicial review was elected by the County, which requested a trial by jury.

Although the jury trial mode of judicial review is a de novo type of proceeding, L.E. § 9-745(b) provides: “(1) [that] the decision of the Commission is presumed to be prima facie correct; and (2) that the party challenging the decision has the burden of proof.” As this Court noted in S.B. Thomas, the statutory presumption of correctness, coupled with a de novo factual determination by a jury, give rise to a specific type of review that has been called an “essential trial de novo,” which differs from a “true trial de novo.” 114 Md.App. at 366 , 689 A.2d 1301 . Judge Moylan described the difference between these two de novo proceedings in General Motors Corp. and in S.B. Thomas. A true trial de novo was described as one in which all of the parties were put back at square one to begin again just as if the adjudication being challenged had never occurred. Accordingly, “[wjhichever party ... had the burden of production and the burden of persuasion before the Commission would again have those same burdens before the circuit court.” General Motors Corp., 79 Md.App. at 79 , 555 A.2d 542 .

An “essential trial de novo” differs, however, due to the conditions required by L.E. § 9-745(b) — that the decision of the Commission be presumed as prima facie correct, and that the burden of proof be placed on the party attacking the decision. As Judge Moylan noted, these conditions become relatively meaningless if it is the claimant who loses before the Commission and then petitions for judicial review in the circuit court. S.B. Thomas, 114 Md.App. at 366 , 689 A.2d 1301 (quoting General Motors, 79 Md.App. at 79-80 , 555 A.2d 542 ). In that situation, the claimant has the same burden of proving a prima facie case at the circuit court level that he had below at the Commission hearing.

Additionally, the claimant must persuade the circuit court by a preponderance of the evidence, just as he was required to persuade the Commission at the original hearing. ¹³⁸ The requirements of L.E. § 9-745(b) take on a different meaning, however, when the claimant prevails at the Commission hearing below, and the employer challenges the Commission’s decision. In that situation, the allocation of the burdens switches. This Court described the dramatic impact of L.E. § 9-745(b) upon the circuit court’s review of a case in which the employer lost before the Commission: In such a case, the decision of the Commission is, ipso facto, the claimant’s prima facie case and the claimant runs no risk of suffering a directed verdict from the insufficiency of his evidence before the circuit court. Indeed the successful claimant, as the non-moving party on appeal, has no burden of production.

The qualifying language [of L.E. § 9-745(b) ] also gives the successful claimant below the edge— the tie breaker — if the mind of the fact finder (judge or jury) is in a state of even balance. The tie goes to the winner below. S.B. Thomas, 114 Md.App. at 367 , 689 A.2d 1301 . Therefore, in an essential de novo review, when the employer pursues judicial review of an unfavorable decision by the Commission, the employer must meet the burden of establishing a prima facie case and must bear the burden of persuading the fact finder by a preponderance of the evidence.

Additionally, the jury will be informed that the decision of the Commission is presumed to be correct, and that the employer has the burden of overcoming that presumption. Id. at 367-68 , 689 A.2d 1301 . In the instant case, Kelly, the claimant, received a decision in his favor from the Commission, awarding him benefits for the back injury that he claimed he sustained from his employment-related motor vehicle accident. The Commission specifically found that “the accidental injury sustained on October 24, 2002 exacerbated [Kelly’s] pre-existing condition requiring the need for back surgery.” When the County elected to seek judicial review of the Commission’s decision by way of an essential de novo proceeding, the allocation of the burdens switched.

At the circuit court level, the County was required ¹³⁹ to produce a prima facie case establishing that there was no causal connection between the employment-related accident and the need for Kelly to undergo back surgery. The County also bore the burden of persuading the jury by a preponderance of the evidence that the accident was not causally related to the surgery. This case took a procedural turn, however, when the County decided to file its motion for summary judgment in an effort to circumvent a jury trial. In its motion, the County argued that Kelly’s claim involves “complex medical questions which require! ] a doctor to relate the surgery and treatment to a reasonable degree of medical certainty to the date of accident.

No doctor has done so.” The County argued that because Kelly suffered from a pre-existing condition, the question of whether the employment-related accident exacerbated his condition, causing him to need surgery, was a complicated medical question which required “a physician’s expert opinion to a degree of medical certainty.” The County argued that, because Kelly did not introduce such evidence during the Commission hearing, “the Claimant failed to meet his burden of proof as a matter of law.” The circuit court granted the County’s motion for summary judgment “as a matter of law,” without any further elaboration. In General Motors Carp, and S.B. Thomas , this Court affirmatively stated: “[T]he decision of the Commission is, ipso facto, the claimant’s prima facie case and the claimant runs no risk of suffering a directed verdict from the insufficiency of his evidence before the circuit court.” S.B. Thomas, 114 Md.App. at 367 , 689 A.2d 1301 ; General Motors, 79 Md.App. at 80 , 555 A.2d 542 . It follows that the risk of an adverse summary judgment is also minimal, although, as we shall explain, not non-existent. We need not attempt to address all possible permutations of situations that may arise in the future if an employer who has requested essential de novo review of an adverse ruling from the Commission files a motion for summary judgment in the circuit court.

We need only decide whether the circuit court correctly granted the ¹⁴⁰ County’s motion in this case on the record before us. We conclude that when the appealing employer files a motion for summary judgment asserting an argument that requires a resolution of an issue of fact, and the underlying facts are susceptible of more than one permissible inference, because the claimant enjoys the presumption of correctness of the Commission’s decision, summary judgment is not appropriate. Summary Judgment and Workers’ Compensation Appeals Prior to an amendment that became effective July 1, 2004, Maryland Rule 2-501(a) stated: “Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Several cases have indicated that the normal rules governing summary judgment apply in “appeals” from the Workers’ Compensation. Commission.

See, e.g., Egypt Farms, Inc. v. Lepley, 49 Md.App. 171, 176 , 430 A.2d 122 (1981). See also Dawson’s Charter Serv. v. Chin, 68 Md.App. 433, 440 , 511 A.2d 1138 (1986) (“Summary judgment may be invoked to prevent an unnecessary trial in a worker compensation appeal, just as in any other action.”); and Maloney v. Carling Nat’l Breweries, Inc., 52 Md.App. 556, 559-60 , 451 A.2d 343 (1982) (summary judgment rules apply to workers’ compensation appeals). The Court of Appeals summarized procedures for considering a summary judgment motion in Peck v. Baltimore County, 286 Md. 368 , 410 A.2d 7 (1979), which this Court quoted in Egypt Farms and Maloney . In Peck , the Court of Appeals stated: We have said many times that the function of a summary judgment proceeding is not to try the case or to attempt to resolve factual issues, but to ascertain whether there is a dispute as to a material fact sufficient to provide an issue to be tried....

Moreover, all inferences must be resolved against the moving party when a determination is made as to whether a factual dispute exists, even if the underlying facts are undisputed.... “[E]ven where the underlying ¹⁴¹ facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.” Peck, 286 Md. at 381 , 410 A.2d 7 (citations omitted). The Court of Appeals demonstrated the appropriate application of the summary judgment rules in a workers’ compensation case in Fenwick Motor Co. v. Fenwick, 258 Md. 134 , 265 A.2d 256 (1970), in which it reversed a decision by the circuit court that had granted summary judgment in the claimant’s favor. Quoting from another workers’ compensation case, Talley v. Dept. of Correction, 230 Md. 22 , 185 A.2d 352 (1962), the Court in Fenwick stated: “It is true that where the facts are conceded, undisputed, or uncontroverted, and the inferences to be drawn therefrom are plain, definite and undisputed ..., their legal significance is a matter of law to be determined by the court, but where the facts, or inferences therefrom, or both, are in dispute, such questions are to be determined by a jury ..., and the jury ... is entitled to weigh and evaluate the evidence, and may disbelieve evidence, even though it is ‘uncontradicted.’ ” Fenwick, 258 Md. at 139 , 265 A.2d 256 . In Femvick, the circuit court granted summary judgment for the claimant, a dependent child who had lost her father in an employment-related accident.

The circuit court found there was no dispute as to any material fact; it concluded that the claimant-child was totally dependent on her deceased father and should be awarded compensation. The Court of Appeals reversed the circuit court’s decision, stating: [I]n a summary judgment proceeding where there is a reasonable basis for a dispute over material factual inferences, it is not the function of the court to resolve them as a matter of law. The court’s function at this stage of the proceedings is to determine if there is a genuine dispute of fact, including factual inferences. Implicit in [the court’s] overturning the findings of the Commission is a conclusion ¹⁴² that the inferences they drew were wrong.

While it is possible the Commission could have been dead wrong, the facts presented here suggest a reasonable basis for a dispute over the inferences to be drawn from them. That being the case summary judgment was inappropriate. Id. at 140 , 265 A.2d 256 . Similarly, in Egypt Farms, supra, this Court reversed a decision by the circuit court that had granted summary judgment in the claimant’s favor and affirmed an award by the Commission.

Noting that one of the permissible inferences from the testimony presented to the Commission was that the employee’s death had arisen out of and in the course of his employment, this Court stated that, “the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.” 49 Md.App. at 176 , 430 A.2d 122 . This Court reversed the circuit court’s summary judgment, concluding: “The court’s error was in resolving the disparate inferences in the claimant’s favor on summary judgment. In doing so, it acted as a trier of fact, which was not its function at that point.” Id. at 182 , 430 A.2d 122 . In the instant case, we also conclude that summary judgment was inappropriate.

The main issue in the case — whether Kelly’s employment-related back injury was causally connected to his back surgery — was in dispute between the parties, and the evidence presented to the Commission permitted more than one inference to be drawn therefrom. Kelly, who presented medical reports that referred to both his pre-existing December 2001 back injury and his employment-related October 2002 injury, also testified before the Commission that his condition had improved after receiving the first two nerve block injections. He further testified that, prior to the 2002 auto accident, he was not going to undergo the surgery. Kelly introduced a medical record dated October 10, 2002, which made reference to back and leg pain prior to receiving the injection on that date.

One week later, when Kelly appeared for a second injection on October 17, 2002, Dr. Dey recorded a note that reflected: “the patient does not ¹⁴³ report any further leg pain.” When Kelly was next seen by Dr. Dey, within one week after the auto accident,