Maldonado v. American Airlines

BATTAGLIA, J. In this workers’ compensation case, the following question is presented: Is expert medical testimony on the issue of physical impairment alone, sufficient to overcome the Workers’ Compensation Commission’s finding on the issue of “industrial loss[?]” ⁴⁷⁰ Phrased in another way, the issue is whether in a judicial review proceeding of a permanent partial disability award by the Workers’ Compensation Commission, must the disputant provide the testimony of a vocational expert regarding industrial loss, 1 in order to rebut the presumption of correctness of the award? In the present case, the Workers’ Compensation Commission determined that George Maldonado, Petitioner, sustained a permanent partial disability of “50% under ‘Other Cases’ industrial loss of the body as a result of the injury to the back and psychiatric (serious disability).” Subsequently, a jury, in a judicial review proceeding, 2 reduced the percentage of loss to 35%, and the trial judge denied Maldonado’s Motion for Judgment Notwithstanding the Verdict. During the trial, the employer, American Airlines, and its insurer, Insurance Company of the State of Pennsylvania (hereinafter collectively referred to as “American Airlines”), Respondents, called Maldonado to the stand; he testified that ⁴⁷¹ he was forty-three years old and that at the time of his injury he was working as an American Airlines fleet service clerk, a position he occupied for fourteen and a half years, which consisted of “loading, offloading, deicing an aircraft, pushing the aircraft back when it was ready for departure, [and] giv[ing] hand signals to the aircraft when it was approaching the gate.” Maldonado further testified that in the process of loading luggage into an aircraft, he cut his hand on an aircraft door; thereafter he proceeded to load baggage into an aircraft with one hand, at which point he felt a tear in his lower back. He testified that the back injury prohibited him from returning to work since the accident, but that after his injury he also obtained a bachelor’s degree in theology in 2002, was able to drive a car, walk between 30 to 40 minutes without taking a break and do “light work” around the house.

He indicated, nevertheless, that, because he could only sit for a certain period of time before needing to lay down, “no job is going to hire me.” American Airlines also presented the videotaped depositions of two medical experts, Dr. Stephen W. Siebert, a psychiatrist, and Dr. Edward R. Cohen, an orthopedic surgeon, who both testified as to their evaluation of Maldonado’ s permanent impairment. 3 See Section 9-721. Dr. Siebert testified that ⁴⁷² “based on impairments in [Maldonado’s] daily activities, in [Maldonado’s] social functioning, in [Maldonado’s] task completion and in what I feel would be [Maldonado’s] likelihood to deteriorate or decompensate in a work situation, I assessed ⁴⁷³ [Maldonado] to have a mild overall impairment of about 10 percent,” and attributed 5% of the impairment to be directly related to the accident and 5% to other factors. Dr. Cohen testified that Maldonado had a 10% impairment to his lower back because he believed half of the degenerative changes were preexisting and half were attributable to the accident; he further stated that his examination and Maldonado’s complaints revealed “that [Maldonado] did not have any findings consistent with what we call a radiculopathy” 4 and that “there was no evidence of instability in [Maldonado’s] spine.” After the denial of his motion for a directed verdict, 5 Maldonado offered the videotaped depositions of two experts, a psychologist, Dr. Morris Lasson, Ph.D, who testified that Maldonado suffered a 60% impairment, due to psychological problems arising from the injury, including depression, and Dr. Jeffrey D. Gaber, M.D., an internist who testified that he estimated Maldonado to have a 45% impairment due to a disk injury to his back as well as an additional 15% impairment from other problems associated with the accident. Maldonado again moved for a directed verdict at the close of all testimony, and the Judge reserved ruling.

After being instructed and ⁴⁷⁴ having deliberated, the jury reduced Maldonado’s Commission award by 15%. 6 His Motion for Judgment Notwithstanding the Verdict pursuant to Maryland Rule 2-582, 7 based upon the absence of a vocational expert testifying on behalf of American Airlines, was denied. On appeal to the Court of Special Appeals, and similarly before us, Maldonado requests a holding that any party who disputes a Commission decision under “Other cases” industrial loss must present the testimony of a vocational expert during a judicial review proceeding in order to rebut the presumption of correctness of a Commission award. After the Court of Special Appeals, in an unreported opinion, declined to so hold, we granted Maldonado’s petition for certiorari, Maldonado v. American Airlines, 403 Md. 612 , 943 A.2d 1244 (2008). In his argument, Maldonado relies on Jewel Tea Co. v. Blamble, 227 Md. 1 , 174 A.2d 764 (1961), and Bullis School v. Justus, 37 Md.App. 423 , 377 A.2d 876 (1977), for the proposition that expert testimony is required to overturn a decision of the Commission when a complex issue, such as industrial loss, is involved.

American Airlines counters Maldonado’s assertion that vocational testimony is required by distinguishing Jewel Tea Co., 227 Md. at 1 , 174 A.2d at 764 , and offering the reasoning in Terumo Medical Corp. v. Greenway, 171 Md. App. 617 , 911 A.2d 888 (2006), to undermine Maldonado’s interpretation of the earlier Bullis School Case from the ⁴⁷⁵ intermediate appellate court. American Airlines also contends that the evidence in the present case was sufficient for the jury to determine the degree of disability, relying on Getson v. WM Bancorp, 346 Md. 48 , 694 A.2d 961 (1997), and that additional evidence need not be introduced, citing General Motors Corp. v. Bark, 79 Md.App. 68 , 555 A.2d 542 (1989). The Workers’ Compensation Commission is empowered to grant awards of compensation for various levels of disability, including permanent partial disability. 8 Permanent partial disability awards are divided into two categories, scheduled injuries 9 and unscheduled “Other cases,” under ⁴⁷⁷ which compensation for industrial loss 10 is determined by the tenets of Section 9-627(k): (k) Other cases.—(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 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. Both Maldonado and American Airlines agree that the essence of the issue before us is whether expert vocational testimony on industrial loss is necessary to rebut the presumption of correctness of a workers’ compensation award under Section 9-745(b), which states that in judicial review proceedings: (l) the decision of the Commission is presumed to be prima facie correct; and (2) the party challenging the decision has the burden of proof. ⁴⁷⁸ See Baltimore County v. Kelly, 391 Md. 64, 75-76 , 891 A.2d 1103, 1109-10 (2006); Ackerhalt v. Hanline Bros., Inc., 253 Md. 13, 20 , 252 A.2d 1, 5 (1969); Krell v. Md. Drydock Co., 184 Md. 428, 435 , 41 A.2d 502, 505 (1945). Section 9-745 does not require nor suggest any quantum or type of evidence to overcome the presumption of correctness of a workers’ compensation award.

This Court in addressing the burden of proof in a judicial review proceeding of such awards often has iterated that a party challenging the decision need not provide evidence additional to that provided before the Commission to satisfy the burden of proof. Ackerhalt, 253 Md. at 21 , 252 A.2d at 5 ; Abell v. Albert F. Goetze, Inc., 245 Md. 433, 437 , 226 A.2d 253, 256 (1967); Greenwalt v. Brauns Bldg. Specialties Corp., 203 Md. 313, 317-18 , 100 A.2d 804, 806-07 (1953). Rather, as Judge Thomas B. Finan, writing for this Court in Abell, 245 Md. at 437 , 226 A.2d at 256 , explained, a party challenging the decision can overcome the presumption of correctness of a Commission decision “by submitting new evidence, by relying on all or a part of the record before the Commission, by argument as to the probative value of the evidence and by argument as to the credibility of witnesses.” See also Ackerhalt, 253 Md. at 21 , 252 A.2d at 5 , and Williams Constr.

Co. v. Bohlen, 189 Md. 576, 580 , 56 A.2d 694, 696 (1948), in which we said: [W]here the Commission has considered conflicting evidence of essential facts, and has drawn one of two different permissible inferences, there may be imposed upon the party attacking the decision of the Commission merely a burden of persuasion, and not necessarily a burden of additional proof____ The provision of the Act placing the burden of proof upon the appellant means only that he must prove in the trial Court what he asserts. His burden is to convince the Court or the jury that the Commission decided incorrectly in interpreting the facts, or deducing the inference from the facts, or construing the law applicable to the facts. ⁴⁷⁹ The gravamen of Maldonado’s argument is that there is a per se requirement for expert vocational testimony in a judicial review proceeding in order to rebut the presumption of correctness of a Commission decision on industrial loss, because industrial loss is such an inherently complicated issue, citing Jewel Tea Co., 227 Md. at 1 , 174 A.2d at 764 . In Jewel Tea Co., both parties sought judicial review of a Workmen’s Compensation Commission decision that determined the employee was permanently totally disabled, with 60% of the disability being attributed to a work injury and 40% being the result of a pre-existing condition. The lay testimony provided by the employee supported the conclusion that she was permanently totally disabled; all medical testimony presented, including the testimony of the employee’s own medical expert, conflicted with a finding of permanent total disability.

We held, with respect to the lay testimony, that “lay testimony alone is not justified when the medical question involved is a complicated one, involving fact finding which properly falls within the province of medical experts,” but clearly posited that such a statement “should not be taken as indicating that we conclude that all awards in cases of injuries of a subjective nature can stand only if accompanied by definitive medical testimony.” Id. at 7 , 174 A.2d at 767 (emphasis added). We, therefore, explicitly stated that we were not establishing a per se requirement for expert testimony when a medical question was involved. Id. So, we note, has the Court of Special Appeals in Terumo Medical Corp. v. Greenway, 171 Md.App. at 617 , 911 A.2d at 888 , when addressing whether in Bullis School, 37 Md.App. at 423 , 377 A.2d at 876 , that court had embraced a per se requirement for vocational expert testimony.

Judge Charles E. Moylan, Jr., writing for the intermediate appellate court in Terumo Medical Corp., specifically repudiated any notion that vocational expert testimony was required under Bullís School: In Bullís School, of course, we said no such thing. We held that testimony from a vocational expert was admissible. That was it. We did not have before us and we did not discuss any minimal requirements for taking a case of ⁴⁸⁰ permanent total disability to the jury.

We did not elevate vocational analysis to a sine qua non for a finding of permanent total disability. Terumo Med. Corp., 171 Md.App. at 639 , 911 A.2d at 900 . The notion, delineated in Jewel Tea Co. and Terumo Medical Corp., that expert testimony may be admitted to assist the fact-finder, is reflected in Maryland Rule 5-702, which states: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.

In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. (emphasis added). Obviously, the fact that expert testimony may be admissible, however, is not dispositive of the issue regarding whether it is required. Whether, as Maldonado asserts, expert vocational testimony is per se required in every case depends upon whether the factors identified in Section 9-627(k)(2) are so complicated that no jury in any case, regardless of the other evidence presented, would have sufficient evidence upon which to alter a Commission decision without the expert testimony.

The factors in Section 9-627(k)(2) include: “(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.” We have acknowledged that the first factor, “the nature of the physical disability,” with respect to impairment only, in some cases may necessitate medical testimony of impairment to assist the finder of fact, see Getson, 346 Md. at 62 , 694 A.2d at 968 (noting that often evaluating physicians provide “an assessment of medical impairment” to assist the finder of fact in determining the degree of disability), while never mandating a ⁴⁸¹ sine qua non requirement. The other factors to be considered under Section 9-627(k)(2), “the age, experience, occupation, and training” of the employee when the accident occurred, moreover, are not so complicated as to require in every case expert vocational testimony to assist the jury in its fact-finding, for as Judge Sally D. Adkins, 'writing for the Court of Special Appeals in this case, aptly noted, “jurors are generally acquainted with matters involving work, vocation, age, experience, training, abilities, salary, and job prospects.” Our conclusion that expert vocational testimony is not per se required to determine industrial loss is consistent with cases in our sister jurisdictions in which their courts have had occasion to review workers’ compensation awards. In those cases, no court has determined that expert vocational testimony was a sine qua non for determining industrial loss. See Ex parte Northam, 689 So.2d 854, 857 (Ala.1996) (holding that “while medical testimony as to an employee’s degree of impairment is probative, as is the testimony of a vocational expert, it is well settled that neither is required” to make a finding of 60% permanent partial disability); Bennett v. Clark Hereford Ranch, 106 Idaho 438 , 680 P.2d 539, 543 (1984) (iterating that while “ ‘an expert in the area of employment’ ” often testifies to prove that the percentage of disability exceeds the percentage of medical impairment, such expert testimony is not required);