Moore v. Component Assembly Systems, Inc.

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned. This expedited appeal is from a decision of the Circuit Court for Baltimore City affirming a decision of the Workers’ Compensation Commission, that discontinued a claimant’s temporary total disability benefits after scheduled remedial surgery had to be postponed because of the claimant’s medical condition. The parties have proceeded on an Agreed Statement of the Case and Facts. A Work-Related Injury The appellant, Grover Moore, was injured on October 21, 1999, while working on a job for Component Assembly Systems, Inc., one of the appellees.

The other appellee is Travelers Insurance Company, the workers’ compensation insurer for Component Assembly Systems. Moore suffered injuries to his left leg and his left foot. There was no dispute over the fact that Moore was, because of the injury to his foot, unable to return to work. He applied to the Workers’ Compensation Commission for benefits; the Commission decided that he was entitled to Temporary Total Disability benefits beginning on October 22, 1999, the day after the accident.

Without objection, Travelers paid Moore the temporary total benefits for the ³⁹¹ three year period of October 22, 1999, through October 8, 2002. The Hope for Remedial Surgery The complicating factor that has given rise to this litigation grew out of an examination of Moore by Dr. Ian Weiner. Dr. Weiner was of the opinion that Moore was a good candidate for surgery to his left foot. Dr. Weiner believed that Moore could not return to work without the surgery but that, if the surgery were successful, Moore could return to work at the end of his post-operative convalescence.

On July 22, 2002, Dr. Weiner scheduled the surgery for October 1, 2002. October 1 thereby became the target date to which all parties were looking in expectation of the termination of the disability. The Hope Deferred In October, however, those high hopes were dashed, and controversy began to swirl 1) over why the scheduled foot operation could not go forward; and 2) over when, if ever, it could be rescheduled. It developed that Moore had had high blood pressure since 1989 and had, at least intermittently, been taking medication for it since 1999.

In October of 2002, moreover, Moore was diagnosed with coronary artery disease. He underwent angioplasty on November 19. A stent was installed to clear a blockage in an artery to the heart caused by cholesterol. After the procedure, Moore’s cardiologist, Dr. Rodney Johnson, ordered him onto a daily regimen of aspirin therapy until further notice.

Aspirin is a blood thinner and helps to guard against undue blood clotting. Because of the blood-thinning effect of the aspirin, with its attendant danger of bleeding complications during surgery, Dr. Weiner declined to go forward with the foot surgery until he received assurance from Dr. Johnson that the aspirin therapy could be safely discontinued for a period of two days. As of October 2002, the scheduled date for the foot surgery, Dr. Johnson had refused to authorize any break in the daily aspirin therapy. ³⁹² Although the Agreed Statement of Facts leaves it less than totally clear, it does appear that all parties expected that the foot surgery that had to be postponed in October would be rescheduled for sometime in February of 2008. Some such mutual understanding seems to have been the basis for a compromise agreement between Travelers and Moore for the payment of benefits during the four-month period between October 16, 2002 and February 10, 2008.

For that period, it was agreed that Travelers would pay to Moore one-half of the amount of temporary total benefits that would otherwise have been due. No issue is before us with respect to that compromise agreement. That expected rescheduling of the foot surgery for February, however, did not take place. It was not until October 23, 2003, that Dr. Johnson finally cleared Moore for the surgery by authorizing him to stop taking aspirin for a period of 48 hours after the surgery.

Following that clearance, Moore’s first available appointment with Dr. Weiner was on November 24, 2003. The foot surgery was rescheduled and was successfully performed on January 8, 2004. The Rulings Below When the foot surgery that had been expected to take place in February of 2003 was deferred to an uncertain future time, Travelers discontinued the payment of temporary total disability benefits. Moore petitioned the Commission to order the appellees to resume the payment of temporary total benefits.

The Commission held a hearing and, on May 5, 2003, ruled that “the issue of temporary total disability from February 11, 2003 to date and continuing is denied.” Moore appealed that decision to the Circuit Court for Baltimore City, which on February 11, 2004, affirmed the Commission. Moore has, in turn, appealed that decision by the circuit court to us. Was There a Break in The Compensable Temporary Disability? The issue is a narrow one.

There are no less than four time periods involved in this case, but the actual controversy is with respect to only one of them. ³⁹³ PERIOD 1: From October 22, 1999, the day after the accident, through October 8, 2002, the week after the foot surgery had first been scheduled, the Commission properly ordered the appellees to pay Moore temporary total benefits. There is no dispute over the fact that this was a time of COMPENSABLE TEMPORARY DISABILITY. PERIOD 2: From October 16, 2002, right after the foot surgery was first postponed, through February 10, 2003, the time to which the foot surgery was first postponed, the mutual agreement between Moore and the appellees provided that Travelers would continue to pay Moore one-half of his temporary total benefits. By agreements of the parties, this continued to be a time of COMPENSABLE TEMPORARY DISABILITY.

PERIOD 3: From February 11, 2003, when Travelers discontinued temporary total benefit payments, until January 8, 2004, when Moore had his foot surgery and Travelers voluntarily resumed payments of temporary total benefits, the parties are in diametric disagreement as to whether this continued to be a period of compensable temporary disability. PERIOD 4: When Moore had his foot surgery on January 8, 2004, Travelers voluntarily resumed payments of temporary total benefits. This period the appellees necessarily concede to be a period of COMPENSABLE TEMPORARY DISABILITY. Thus, from October 22, 1999, through January 8, 2004, a period of four years and three months, the only arguable break in the compensable temporary total character of the indisputably continuing disability was the 11-month period between February 11, 2003, and January 8, 2004.

There had been a period of temporary total disability prior to that arguable break. There was to be a period of temporary total disability following that arguable break. The question before us is whether something happened on or about February 11, 2003, to terminate, or at least to interrupt, the legally binding nature of the continuing temporary disability. ³⁹⁴ Responsibility For the Prolongation Of a Temporary Disability The triggering event for such an interruption, from the appellees’ point of view, was the second postponement of the surgery coupled with apparent uncertainty as to when, if ever, it could be rescheduled. The appellees, to be sure, had once been hopeful that Moore’s temporary disability would come to an end shortly after the surgery first scheduled for October 1, 2002.

When that surgery was postponed for a period of four months, the appellees nonetheless agreed, apparently somewhat grudgingly, that the temporary nature of the disability was still continuing. At least, they continued to make partial payments on that basis. The critical event for them was the second postponement of surgery from February of 2003 to some uncertain future time. The appellees do not argue that Moore’s disability itself had terminated on February 11, 2003, only that their responsibility for it had terminated.

Nor do they argue that a temporary disability had, because of some apparent likelihood that the surgery could never be done, on that date been transmuted into a permanent disability. They focus, rather, on the prolongation per se of the temporary disability and argue that that prolongation was the result of a superseding, intervening cause, to wit, the heart condition giving rise to the necessity for Moore to continue the daily aspirin therapy. They argue that, because the work-related injury was not the cause of the prolongation of the disability, they are relieved of liability for the prolonged or extended period of disability. The appellees state their position in their brief: It was not because of the Appellant’s injury due to the accident that he has been unable to work, but instead due to his unrelated medical condition which was preventing him from getting the treatment he required.

(Emphasis supplied). They go on to develop that argument more fully. In the case at bar, we have a claimant who, after the accident, found out that he could not have reparative sur ³⁹⁵ gery due to the onset of a heart condition. This new condition breaks the causal nexus required for the continued payment of temporary total disability benefits.

Requiring the Appellees to pay temporary total disability benefits during this period is essentially asking them to support the Appellant during an unrelated infirmity. As was argued before the Commission, this is akin to a claimant who is out for a finger injury but cannot return to work because of a subsequent injury to another body part while he or she is still recuperating. It is this new occurrence keeping the Appellant out of work. Because of the break in the nexus, we do not reach the question of whether the new occurrence is interfering with the Appellant’s ability to recuperate.

The doctors did not know how long the head condition would preclude him from getting the surgery. In fact, one doctor later opined that it would be better for him to never get the surgery. Until the Appellees discovered this, they, as a courtesy, were continuing the temporary total benefits until the heart condition cleared up sufficiently to allow the surgery. This significant delay breaks the chain of causation between his employment and his injury.

Thus, the Appellees are not responsible after the chain breaks. Once the chain repaired itself, the Appellees commenced temporary total disability and continue to pay it. (Emphasis supplied). The Obligation to Undergo Reasonable Remedial Treatment The law in Maryland has long been settled that a claimant may not prolong a period of compensable disability by refusing to submit to medical or surgical treatment if, objectively measured, a reasonable man would ordinarily submit to treatment under similar circumstances.

If, on the other hand, it would be objectively reasonable to refuse to submit to treatment or to postpone treatment, compensability for the continuing disability is not adversely affected. In Schiller v. ³⁹⁶ Baltimore and Ohio Railroad Company, 137 Md. 235, 246 , 112 A. 272 (1920), the Court of Appeals stated: The overwhelming weight of authority is that a man cannot continue to receive compensation and at the same time refuse to submit to proper medical or surgical treatment such as an ordinarily reasonable man would submit to in like circumstances. R.N. McCulloh and Company v. Restivo, 152 Md. 60 , 136 A. 54 (1927), fleshed out more fully the standard for measuring whether the refusal “to accept medical or surgical attention” is reasonable. The employer there had been ordered to pay compensation to Restivo “during the continuance of his temporary partial disability.” 152 Md. at 63 , 136 A. 54 .

On appeal to the circuit court, the employer sought to have the jury instructed that, if it found that the “claimant’s condition