LUBY CHEVROLETM, INC. v. Gerst

EYLER, Judge. The question of first impression presented by this case is whether, under Maryland’s Worker’s Compensation Act, a new disease that develops subsequent to an occupational disease award may form the basis for reopening and modifying that award under § 9-736(b), Md.Code Ann., Labor & Employment Art. (1991 Repl-Vol., 1996 Supp.). We hold that when the claimant has established a causal link between the initial, compensable disease and the subsequent disease, the claimant may reopen and obtain a modification of the award. Facts In 1986, Jean Y. Gerst, appellee, began working for Luby Chevrolet, Inc., appellant, 1 as an office manager.

Appellee’s duties included daily key punching, light typing, and the use of calculators and computers to balance her employer’s books. Appellee began experiencing problems with her hands in February or March of 1987 and was treated by a physician in October or November 1987. In January 1988, appellee underwent two separate surgical procedures for carpal tunnel release on her right hand and left hand, respectively. After the first surgical procedure, appellee returned to work on the next working day, and, at the end of that day, she was told that she could not keep up with her work and was terminated.

Appellee filed a claim for injury to her right and left hands in May 1988. Appellee testified at a hearing in October 1988 that she was experiencing problems with her hands; there was no testimony with respect to any problems with her elbows. The Worker’s Compensation Commission (Commis ¹⁸² sion), by order dated November 1, 1988, found that appellee had sustained an occupational disease, ie., “bilateral carpal tunnel syndrome”, and that the first date of disablement was in March 1987. That decision was appealed to the Circuit Court for Baltimore City and affirmed after a bench trial.

In the meantime, based on a stipulation between the parties, the Commission, by order dated January 3, 1990, awarded permanent partial disability for the “left hand” and the “right hand,” as a result of “bilateral carpal tunnel syndrome.” In August 1988, appellee began working at Watson’s Fireplace and Patio as a bookkeeper, and she worked there for approximately one and one-half years. From November 1989 until October 1994, appellee worked as a bookkeeper/aceountant at Key Oldsmobile. Subsequent to that employment, appellee worked for B & L Sales as a buyer and for Key Leasing as a bookkeeper. Soon after beginning her work at Key Oldsmobile in 1989, appellee began experiencing problems with her right elbow and numbness and tingling in her pinky finger and ring finger.

This was different from the pain in her forefinger and thumb that she had been experiencing up to that point. Appellee’s problems progressed so that her grip was weakened and she experienced pain. Appellee never missed any work as a result of these new complaints. On August 1, 1994, appellee filed in her original claim a request for emergency hearing on medical expenses, based on a worsening of condition, and the insurer’s denial of payment for corrective surgery.

A hearing was held on September 7, 1994 and, on October 21, 1994, the Commission entered an order in which it granted appellee’s petition to reopen. The Commission rephrased the issues as “causal relationship— elbow condition” and. “authorization for surgery as recommended by Dr. Franks in his reports dated 6/6/94 and 6/20/94.” The Commission further found that appellee’s elbow condition was not causally related to the occupational disease with date of disability of March 15,1987 and, therefore, denied the request for authorization for surgery. ¹⁸³ Appellee filed a petition for judicial review on November 17, 1994. The case was tried before a jury on September 20 and 21, 1995. The trial judge denied appellants’ motions for judgment at the close of appellee’s case and at the close of all of the evidence.

The jury was presented with the following issue: “Is the claimant’s cubital tunnel syndrome causally related to her carpal tunnel syndrome which the Commission found she had as of March 15,1987?” On September 21,1995, the jury answered that issue in the affirmative. At trial, appellee called Dr. Denis Franks, a hand surgeon and treating physician. Dr. Franks testified that he first saw appellee on December 11, 1987, and that he diagnosed her condition as bilateral carpal tunnel syndrome. She underwent surgery on the right hand on January 13, 1988 and on the left hand on January 29, 1988.

Dr. Franks described carpal tunnel syndrome as a disorder that affects the median nerve and testified that the most common cause is repetitive trauma/action. The witness testified that cubital tunnel syndrome is a disorder that affects the ulnar nerve and that appellee’s first complaint of ulnar nerve involvement was in August 1988. By June 1990, appellee clearly exhibited signs of bilateral cubital tunnel syndrome, although at that time she did not exhibit any conduction abnormalities. Dr. Franks opined that cubital tunnel syndrome is related to repetitive stress to the elbows and observed that it is not unusual for it to develop in patients with carpal tunnel syndrome because they modify the way in which they use their hands.

He further opined that appellee’s cubital tunnel syndrome was causally related to her employment with appellee, Luby Chevrolet, in 1987 to 1988. The doctor indicated that it was his impression that appellee had changed the way she used her arms after developing carpal tunnel syndrome, thereby aggravating what was probably “an indolent condition.” He described an indolent condition as meaning that the condition was present in 1987 to 1988 but not symptomatic. The witness pointed to appellee’s complaint with respect to her left elbow in August 1988 and her complaint with respect to her right elbow in February 1990. The doctor acknowledged, on cross-examination, that carpal ¹⁸⁴ tunnel syndrome does not cause cubital tunnel syndrome.

In June 1994, Dr. Franks recommended surgery on appellee’s right arm for cubital tunnel syndrome. Appellant called Dr. Louis Halikman, an orthopedic surgeon, as an expert witness. Dr. Halikman testified that carpal tunnel syndrome and cubital tunnel syndrome are caused by the same underlying inflammatory condition but carpal tunnel syndrome does not cause cubital tunnel syndrome. Appellant presents three questions for our consideration. 1.

Can a claimant who has been compensated for an occupational disease reopen and receive benefits under that claim when she develops a different occupational disease which she claims is causally related to the first occupational disease? 2. Did the trial court err in denying appellants’ motions for judgment based on the fact that at the time of trial appellee had never been disabled by cubital tunnel syndrome? 3. Did the trial court err in denying appellants’ motions for judgment based on the last injurious exposure rule? Discussion Maryland’s Worker’s Compensation Act (the “Act”) provides for the compensation of accidental injuries arising out of and in the course of employment and occupational diseases that are contracted as the result of and in the course of employment.

Md.Code Ann., Labor & Employment, §§ 9-101, 9-501, 9-502 (1991 RepLVol., 1996 Suppl.) 2 In order to maintain a claim for occupational disease, a claimant must show, in addition to a causal link to the employment, that the hazards of the disease are inherent to the nature of the employment, i.e., nonaccidental. § 9-502(d). Further, the claimant must show that she has been actually incapacitated by the disease. § 9-101(g)(2). The Act assigns the obligation ¹⁸⁵ of compensation to “the employer in whose employment the covered employee was last injuriously exposed to the hazards of the occupational disease.” § 9-502(b). In addition to providing compensation for lost wages, the Act also provides compensation for medical expenses incurred in connection with the occupational disease or accidental injury. § 9-660.

The Act provides that medical services and treatment shall be paid for by the employer or its insurer for as long as such treatment or service is required, § 9~660(b), notwithstanding the termination of wage compensation. A.G. Crunkleton v. Barkdoll, 227 Md. 364, 368 , 177 A.2d 252 (1962). The medical benefits are an important portion of the compensation provided to covered employees, and the employer’s liability for medical benefits can potentially be immense. See, e.g., R & T Construction v. Judge, 323 Md. 514, 521-22, 529-30 , 594 A.2d 99 (1991) (holding that this section 3 required the employer/insurer to make modifications to employee’s home and to provide and pay for utility service, medical equipment, including an electric wheelchair, a hospital bed, a bedside and a portable respirator, a suctioning device, and an air conditioner).

The Act includes a broad reopening provision that gives to the Commission continuing powers and jurisdiction over each claim. § 9-736(b). Subject to a five year statute of limitations, 4 “the Commission may modify any finding or order as the Commission considers justified.” Id. Worsening of condition is a common cause for reopening a claim. Stevens v. Rite-Aid Corp., 340 Md. 555 , 565 n. 11, 667 A.2d 642 (1995).

Appellants contend that, as a matter of law, the development of appellee’s cubital tunnel syndrome cannot form the ¹⁸⁶ basis for reopening her original worker’s compensation claim, because the cubital tunnel syndrome is a new disease that is distinct from the carpal tunnel syndrome which formed the basis of her initial claim and not a worsening of the first disease. Relying on §§ 9-736(b) and 9-502(a), appellants argue that when a new and different disease develops, the claimant’s only recourse is to file a new claim. 5 Stated somewhat differently, a new occupational disease that arises out of a compensable occupational disease, is not compensable unless it forms the basis for a new claim under the Act. The claim would be made against that employer determined by the last injurious exposure rule. By contrast, appellee argues that she need only establish a causal link between the first disease and the subsequent disease in order to reopen her claim.

In determining the legislature’s intent in this regard, we are mindful of the principles that apply to construction of the Act. The Act must be construed as a whole and liberally to carry out its general purpose of compensating individuals who have been injured in the course of their employment. § 9-102; Para v. Richards Group of Wash. Ltd. Partnership, 339 Md. 241, 251 , 661 A.2d 737 (1995) (quoting Howard Co. Ass’n Retard. Cit. v. Walls, 288 Md. 526, 530 , 418 A.2d 1210 (1980)); Lovellette v. City of Baltimore, 297 Md. 271, 282 , 465 A.2d 1141 (1983).

Thus, in the event of any ambiguity, the Act should be construed in favor of the injured employee. Lovellette, 297 Md. at 282 , 465 A.2d 1141 . Further, “where a particular provision of a statute is part of a single statutory scheme the legislative intention must be gathered from the entire statute rather than from only one part.” Lowery v. McCormick Asbestos Co., 300 Md. 28, 46 , 475 A.2d 1168 (1984) (quoting Guardian Life Ins. v. Ins. Comm’r., 293 Md. 629 , 446 A.2d 1140 (1982)).

Finally, “a well-recognized counter-balancing rule is that a court must not surmise legislative intention contrary to the plain language of a statute.” Id. ¹⁸⁷ An examination of § 9-736(b) reveals that there is nothing in the reopening mechanism itself that precludes reopening in this instance. Section 9-736(b) provides in pertinent part as follows: (b) Continuing powers and jurisdiction; modification. — (1) The Commission has continuing powers and jurisdiction over each claim under this title. (2) Subject to paragraph (3) [6] of this subsection, the Commission may modify any finding or order as the Commission considers justified.... This section has been described, by us and others, as “one of the broadest” reopening provisions in the country.

Subsequent Injury Fund v. Baker, 40 Md.App. 339, 345 , 392 A.2d 94 (1978) (citing A. Larson, 3 The Law of Workmen’s Compensation, §§ 81-30 to 81-53). See also Stevens, 340 Md. at 565 n. 11, 667 A.2d 642 (quoting Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook, 155 (2d ed. 1993)). It typically is used “for situations in which a claimant’s condition degenerates, entitling the claimant to increased benefits.” Stevens, 340 Md. at 565 n. 11, 667 A.2d 642 . More precisely, it often is used by claimants seeking additional medical benefits.

See, e.g., Holy Cross Hosp. v. Nichols, 290 Md. 149 , 428 A.2d 447 (1981). In this case, appellee was seeking authorization for surgery. The Commission exercised its broad discretion and reopened appellee’s claim, but denied appellee relief because it found that there was no causal link between her “elbow condition” and her occupational disease. Neither does the medical benefits provision answer our question.

That provision, § 9-660, provides in pertinent part as follows: (a) In general. — In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or oeeupa ¹⁸⁸ tional disease the employer or its insurer promptly shall provide to the covered employee, as the Commission may require: (1) medical, surgical, or other attendance or treatment .... This section provides for medical treatment or services occasioned by the covered employee’s “accidental personal injury, compensable hernia or occupational disease.” Thus, our query turns on the definition of “occupational disease”. It is clear that, if this case involved an accidental injury, appellee would prevail inasmuch as the Act defines “accidental injury” to include “a disease or infection that naturally results from an accidental injury ... including ... an occupational disease....” § 9 — 101(b)(3). The phrase “naturally results from an accidental injury” means nothing more than proximate cause in the usual sense.

Dickson Constr. & Repair Co. v. Beasley, 146 Md. 568, 578-79 , 126 A. 907 (1924). This aspect of the accidental injury definition has remained substantively unchanged from the inception of the Act in 1914, and this Court and the Court of Appeals routinely have held that diseases that develop as a result of accidental injuries are compensable. See, e.g., Bethlehem-Sparrows Point Shipyard, Inc. v. Scherpenisse, 187 Md. 375 , 50 A.2d 256 (1946) (typhus fever compensable where evidence established that it was causally related to wound sustained by employee when he accidentally stepped on a nail during his employment); Continental Group v. Coppage, 58 Md.App. 184 , 472 A.2d 1014 (1984) (involving seizure disorder causally related to accidental injury to head). Thus, a subsequent development of occupational disease will be considered a worsening of condition in an accidental injury case if the claimant proves the requisite causation between the disease and the accidental injury.

By contrast, the definition of “occupational disease” 7 does not expressly include diseases or infections that naturally ¹⁸⁹ result from the occupational disease. § 9-101(g). Thus, we must determine whether, by silence on this issue, the legislature intended to exclude from compensation those diseases or infections that naturally result from a compensable occupational disease. When the Act first was enacted in 1914, it provided compensation only for accidental injuries. See Md.Laws 1914, ch. 800.

The term “accidental injury” never was defined by the legislature, and, in the absence of a statutory definition, the Court of Appeals defined it to include only injuries arising from unexpected events or unusual work conditions. See, e.g., Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 262 , 153 A. 283 (1931). As recently noted by the Court of Appeals, the early cases that defined accidental injury created definitions of occupational disease for the purpose of illustrating the converse of accidental injury.

Davis v. Dynacorp, 336 Md. 226, 233 , 647 A.2d 446 (1994) (citing Foble v. Knefely, 176 Md. 474, 486 , 6 A.2d 48 (1939); Gunter v. Sharp & Dohme, Inc., 159 Md. 438, 443 , 151 A. 134 (1930); Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 379 , 128 A. 635 (1925)). In 1939, the Act was amended to include compensation for occupational diseases. Md.Laws 1939,