Ngo v. CVS, Inc.

SALMON, J. The sole question that we are called upon to decide in this case, as phrased by the appellant, Phuonglan Ngo, is: Can a claimant who has reached maximum medical improvement receive temporary total disability benefits under the Maryland Workers’ Compensation Act? We shall answer that question in the negative and affirm the judgment of the Circuit Court for Prince George’s County. I. Background On December 21, 2009, Phuonglan Ngo (hereinafter “claimant”) was 68 years old and working at a CVS store in Hyattsville, Maryland. While in the course of her employment as a pharmacist, claimant fell on some ice that had accumulated on CVS’s premises.

Claimant suffered an injury to her mid and low back as a result of that fall. Claimant began receiving temporary total disability payments through CVS’s insurer, American International South Insurance Company (hereinafter “American International”), on the day following her fall. She commenced medical treatment shortly after the accident and on April 27, 2010, saw, for the first time, Dr. Joel Falik, a neurosurgeon. Dr. Falik’s examination showed that the claimant had a medical condition known as kyphoscoliosis throughout the lumbar and thoracic spine.

In layman’s terms, this meant she had a pre-existing S-shaped curve to the mid and low back portion of her spine. A MRI scan of the claimant’s back revealed that she also had ⁴¹⁰ a fracture at the T-12 level. This fracture was due to the subject accident. Fragments from the fracture entered the spinal canal at the site of the curvature of claimant’s spine.

There was not, however, any compression of the spine. Dr. Falik believed that claimant might benefit by a kyphoplasty, which is a surgical procedure, to repair the fracture. Dr. Falik referred claimant to Dr. Khaled M. Kebaish, an orthopedic surgeon with offices in Baltimore, Maryland, to further evaluate claimant’s medical condition. On July 7, 2010, claimant met with Dr. Kebaish who discussed with her the advantages and disadvantages of having a kyphoplasty.

Claimant, on that date, decided not to have the surgery. On July 27, 2010, after it received word that claimant had declined to have surgery, American International stopped making temporary total disability payments to claimant. Claimant filed issues with the Maryland Workers’ Compensation Commission (“the Commission”), on August 23, 2010 and asked the Commission to: 1) Order vocational rehabilitation. 2) Reinstate temporary total disability payments. On October 14, 2010, claimant saw Dr. Jerome Gardiner, an orthopedic surgeon.

Dr. Gardiner had been retained by American International to perform an independent medical examination of claimant. Dr. Gardiner concluded that as of October 10, 2010, claimant was unable to return to full-time work. In his opinion, however, she was capable of working four hours per day, provided that her job was a sedentary one. In Dr. Gardiner’s opinion, claimant had already reached maximum medical improvement due to her job-related injury inasmuch as she had decided not to have surgery.

A hearing was held before the Commission on December 1, 2010. The Commission considered, inter alia, claimant’s testimony and the reports of Drs. Gardiner, Falik and Kebaish. ⁴¹¹ On December 21, 2010, exactly one year after the subject accident, the Commission issued its opinion and order, which read, in material part, as follows: Hearing was held in the above claim in Beltsville, Maryland on December 1, 2010 on the following issues: 1) Maximum medical improvement. 2) Temporary total disability. 3) Vocational rehabilitation. The Commission finds that as a result of the accidental injury sustained on December 21, 2009, claimant was paid compensation for temporary total disability from December 22, 2009 to July 26, 2010 inclusive.

The Commission finds on the first issue presented that claimant is at maximum medical improvement. The Commission finds on the second issue presented that temporary total disability from July 27, 2010 to present and continuing is denied. The Commission finds on the third issue presented that a 60-day vocational rehabilitation program for job placement is authorized. The Commission further finds that claimant shall be paid compensation for vocational rehabilitation benefits at the temporary total disability rate during the period of vocational rehabilitation.

Claimant filed a petition for judicial review in the Circuit Court for Prince George’s County and requested a jury trial. After the employer/insurer filed an answer to the petition, claimant filed a motion for summary judgment, in which she asked the court to “modify” existing workers’ compensation law. In her memorandum in support of that motion, claimant stated that she did not dispute Dr. Gardiner’s determination that she had presently reached “maximum medical improvement for her injuries----” She also admitted in her memorandum that “decades of Maryland case law” supported the Commission’s decision to terminate “temporary total disability benefits solely on the basis ... that [the claimant had reached] maximum medical improvement....” She further admitted that “Maryland appellate decisions have regularly supported the termination of temporary disability benefits ⁴¹² upon a finding of maximum medical improvement regardless of whether a claimant continues to suffer from loss of earning capacity.” Despite the existing case law, claimant contended that she was entitled to summary judgment in her favor because the “Maryland Legislature never intended that a finding of maximum medical improvement mark[s] the end of the temporary total disability” compensation period. Based on her counsel’s reading of the intent of the Maryland General Assembly, claimant asked the court to “modify existing law to prevent further impermissible burden-shifting in clear contravention of the traditional role of the Commission or court.” After the employer/insurer responded to the summary judgment motion, the circuit court denied that motion.

Shortly before trial, the employer/insurer filed a motion in limine, in which movants pointed out that in his video-taped deposition, which was to be shown to the jury at trial, claimant’s own expert, Dr. Falik, testified that claimant had reached “maximum medical improvement” on January 21, 2011. 1 Next, relying on some of the same cases that claimant had cited in her memorandum in support of summary judgment, the employer/insurer contended that as a matter of law, temporary total disability benefits must terminate when the claimant reaches maximum medical improvement. Movants asked the court to rule that “temporary total disability benefits should be limited to a closed period of benefits from July 27, 2010 to January 21, 2011 and not an open and continuous period.” The circuit court denied the motion in limine. Trial was held on July 13, 2012. The video-taped deposition testimony of Dr. Gardiner and Dr. Falik was presented to the jurors.

Dr. Gardiner testified that claimant had reached maximum medical improvement on July 7, 2010, which was the date that claimant decided not to have surgery. Dr. Falik ⁴¹³ testified that claimant reached maximum medical improvement on the date he last saw claimant, which was “in early 2011, in January of 2011.” Claimant testified that after she declined surgery in July 2010, she continued to see Dr. Falik, who prescribed pain medication therapy up until January of 2011. Claimant also testified that Dr. Gardiner had advised her in the fall of 2010 that she was able to work four hours per day at a job that would allow her to sit down and did not require her to lift over ten pounds. At that point, claimant began looking for jobs of the sort suggested by Dr. Gardiner.

According to claimant’s testimony, she applied for approximately 50 jobs of the type recommended. The jobs she applied for included receptionist, clerk, help desk employee and pharmacy technician. Claimant testified that she believed that she was physically capable of performing the jobs for which she applied. Nevertheless, she received no job offers and was still unemployed.

At the conclusion of the evidentiary phase of the case, the employer/insurer made a motion for judgment based on the same grounds as those set forth earlier in their in limine motion. The motion for judgment was denied. The jury, after deliberation, filled out a special verdict sheet and found as follows: 1) That the Claimant reached maximum medical improvement as of “January, 2011,” 2) That the Claimant was temporarily and totally disabled from performing any and all work for any period of time after July 27, 2010, solely as a result of the December 21, 2009 accidental injury, and 3) That the Claimant continued to be temporarily and totally disabled from July 27, 2010 “until she finds a job.” The employer/insurer filed a motion for judgment notwithstanding the verdict (hereinafter “judgment N.O.V.”) or, in the alternative, for a new trial, based on the same arguments they had put forth in their in limine motion. Claimant, in response to the post-trial motions, no longer argued, as she had in her motion for summary judgment, that Maryland case law ⁴¹⁴ did not reflect the intent of the Maryland General Assembly.

Instead, appellant’s counsel argued that Maryland case law supported her position that temporary total disability benefit payments could continue after the worker reached maximum medical improvement, so long as the claimant remained totally disabled. After a hearing, the trial judge conceded that she should have granted the employer/insurer’s motion in limine. The trial judge then granted the motion for judgment N.O.V. on the grounds that the evidence, taken in the light most favorable to the claimant, showed that claimant had reached maximum medical improvement in January of 2011, and, therefore, claimant was currently not entitled to receive temporary total disability payments. Next, the parties stipulated that Dr. Falik’s testimony showed that the date of maximum medical improvement was the date that Dr. Falik last saw claimant, which was January 18, 2011.

On June 1, 2012, the circuit court signed an order setting aside the finding by the jury that the claimant was “temporarily and totally disabled from July 27, 2010 to the present and continuing until she finds a job.” The court also vacated the December 21, 2010 order of the Commission and remanded the case to the Commission for entry of an order that stated: 1) Ms. Ngo attained maximum medical improvement in January 2011; 2.) Ms. Ngo was temporarily totally disabled solely as a result of her December 21, 2009 accidental injury after July 21, 2010, and 3) Ms. Ngo is temporarily totally disabled from July 27, 2010 until “January 18, 2011....” 2 Claimant then filed a timely appeal to this Court. ⁴¹⁵ II. Analysis In Wal Mart Stores, Inc. v. Holmes, 416 Md. 346 , 353-54 n. 2, 7 A.3d 13 (2010), the Court of Appeals said: The four categories of disability benefits to which an injured worker may be entitled are: temporary partial disability (disability which is temporary in duration and partial in extent) under [Md.Code (1991), 2008 Repl. Vol.] §§ 9-614-9-617 [of the Labor & Employment Article]; temporary total disability (disability which is temporary in duration but total in extent) under §§ 9-618-9-624; permanent partial disability (disability which is permanent in duration and partial in extent) under §§ 9-625-9-634; and permanent total disability (disability which is permanent in duration and total in extent) under §§ 9-635-9-642. In this appeal, appellant contends that Maryland case law supports her position that temporary total disability payments may continue even after the worker reaches maximum medical improvement, so long as the claimant remains wholly disabled.

For this proposition, appellant cites Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71 , 12 A.2d 525 (1940). At the time the Gorman case was decided, the maximum amount that an employer had to pay to an employee for permanent partial disability was $5,000. After receiving $3,400 in temporary total disability payment, Gorman applied for permanent partial disability benefits. Id. at 73 , 12 A.2d 525 .

The employer took the position that the maximum it would have to pay in permanent partial disability payments was $1,600 ($5,000 less $3,400 that the employee had received for temporary total disability). Id. The Gorman Court rejected the employer’s argument saying: “A temporary total disability and a permanent total disability, a temporary partial disability and a permanent partial disability are four different compensable results; and the measure of the compensation to be appropriately awarded in these instances as they may occur is not for the court to ⁴¹⁶ create nor change.” Id. at 75 , 12 A.2d 525 . The Court went on to observe that the “General Assembly provided that where there was a temporary total disability the compensation for a permanent partial disability from specified injuries should be in addition to the compensation allowed for the temporary total disability and be consecutively paid.” Id. at 78 , 12 A.2d 525 .

The Gorman Court then used the following language, upon which appellant relies in this case: It may be added that this period of temporary total disability is the healing period, or the time during which the workman is wholly disabled and unable by reason of his injury to work. It is, therefore, a separate and unitary period of compensation, and as such is distinguished from a permanent partial disability. Id. (Emphasis added.) In the case sub judice, appellant contends that the governing rule should be that even though the healing period has ended (because the worker has reached maximum medical improvement), a worker may still receive temporary total disability payments if he or she remains wholly disabled and unable, by reason of his or her injury, to work.

In making this argument, appellant stresses that in the excerpt from Gorman just quoted, the Court used the disjunctive “or,” which means, according to appellant, that a worker is entitled to temporary total disability benefits if she can prove either that she is in the healing period or she is still totally disabled. 3 We disagree with appellant’s interpretation of Gorman . To read the language of Gorman as appellant does would blur and distort the distinction between permanent disability (either partial or total) and temporary disability. ⁴¹⁷ In Buckler v. Willett Construction, 345 Md. 350, 360 , 692 A.2d 449 (1997), which was decided 57 years after Gorman , the Court of Appeals interpreted the same language that appellant relies upon. The Buckler Court said: “Temporary total disability ... refers to the healing period during which the employee is unable to work due to the injury.” (Emphasis added). In other words, to receive temporary total disability, a claimant must be both in the “healing period” and be totally disabled.

The Buckler Court’s reading of the Gorman case is strongly buttressed by the case of Jackson v. Bethlehem-Fairfield Shipyard, Inc. 185 Md. 335 , 44 A.2d 811 (1945). The question presented in Jackson was very similar to the one considered by the Court in Gorman. The Jackson Court set forth the issue presented as follows: [Wjhether, (in 1942) (i) the maximum total ($6,000) allowable for ‘permanent total disability’ under [Article 101] Section 48(1), [a] included or [b], was ‘in addition to and consecutive with,’ (ii) any compensation previously paid for ‘temporary total disability’ under section 48(2). 4 Id. at 337 , 44 A.2d 811 . The Jackson Court ruled that the Commission acted within its power in making an award for permanent total disability that was in addition to (i.e., without crediting) an award for temporary total disability.

Id. at 340 , 44 A.2d 811 . In reaching this decision, the Jackson Court explained and gave effect to the Gorman case, saying: “In the Goman case this court said ‘that this period of temporary total disability is the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work. It is, therefore, a separate and unitary period of compensation, and as such is distinguished from a permanent partial disability.’ 178 Md. [at] 78, 12 A.2d [at] 529. This ‘healing period’ is distinguished ⁴¹⁸ from, a permanent disability, partial or total. ‘Temporary, as distinguished from permanent, disability, under the Workmen’s Compensation Act, is a condition that exists until the injured workman is as far restored as the permanent character of the injuries mil permit.

An apt illustration is a case where there has been a loss of both arms. The temporary disability to be considered in such an instance is the physical state of the patient until the stumps are healed and he is able to get about. The actual disability to do effective work is the same in either case and continues for life.’ Vishney v. Empire Steel & Iron Co., 1915, 87 N.J.L. 481, 483 , 95 A. 143, 144 ; cf. Mt. Olive Coal Co. v. Industrial Commission, 1920, 295 Ill. 429, 431-432 , 129 N.E. 103 ; Stromberg Motor Device Co. v. Industrial Commission [1923], 305 Ill. 619 , 137 N.E. 462 ; Western Cartridge Co. v. Industrial Commission, 357 Ill. 29, 32 , 191 N.E. 213 . ‘The period of temporary total incapacity should not include any part of the period wherein the incapacity has become permanent. ’ Chicago