R & T Construction Co. v. Judge

RODOWSKY, Judge. This workers’ compensation case concerns the scope of an employer’s obligation to provide medical treatment and services under Maryland Code (1957, 1985 Repl.Vol.), Art. 101, § 37(a). The principal issues are whether the complainant, a quadriplegic, is entitled to a specially equipped van, to additional remodeling and enlarging of his residence, and to the cost of electricity consumed in powering certain appliances used by him. The Workmen’s Compensation Commission denied all three requests; the Circuit Court for Montgomery County reversed, and the Court of Special Appeals affirmed that reversal.

R & T Constr. Co. v. Judge, 82 Md.App. 700 , 573 A.2d 96 (1990). Section 37(a) provides in relevant part: “Employer to provide medical, etc., treatment and ser vices.—In addition to the compensation provided for herein the employer shall promptly provide for an injured employee, for such period as the nature of the injury may require, such medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutch ⁵¹⁷ es, apparatus, artificial hands, arms, feet and legs and other prosthetic appliances as may be required by the Commission____” The claimant, Thomas Claude Judge (Judge), fell out of a third story window on October 28, 1981, while constructing townhouses in Gaithersburg, Maryland. The petitioner, R & T Construction Company (R & T), is a Virginia based corporation which was Judge’s statutory employer at the time of the accident.

The insurer is Maryland Casualty Company. Judge, who was born November 2, 1929, is a resident of Virginia. As a result of the accidental injury, Judge is completely paralyzed from the neck down. He is confined to his bed or to his wheelchair.

He is attended round-the-clock by nurses working one at a time, in shifts. Judge’s paralysis includes his bladder, his bowels, and even the involuntary control of his blood vessels. As a result of the latter, his body cannot regulate its temperature. Judge is “ventilator-dependent,” meaning that he is unable to breathe without the assistance of a machine, referred to as a “respirator” and as a “ventilator.” Judge has at least two ventilators, a stationary one that sits by his bed, and a portable one that is carried on his wheelchair.

His electrically powered, motorized, tiltable wheelchair is almost twenty-seven inches wide. Judge uses the wheelchair in a reclining position, in contrast with sitting upright in it. Judge pursued workers’ compensation in Virginia to an award against R & T rendered in February of 1982. He was sent to the Rocky Mountain Regional Spinal Injury Center located at Craig Hospital in Colorado, a nationally known facility specializing in the management and care of ventilator dependent quadriplegics.

Judge’s wife, Patricia Judge, was trained at Craig Hospital in caring for Judge. From the time of his release, Judge has lived with his wife at their detached residence in Dale City, Virginia. In December 1982 the Supreme Court of Virginia held that under the Virginia workers’ compensation statute the ⁵¹⁸ employer’s obligations for medical care and vocational rehabilitation did not include structural improvements to the residence of a paraplegic who was confined to a wheelchair. Low Splint Coal Co. v. Bolling, 224 Va. 400 , 297 S.E.2d 665 (1982).

The Virginia Industrial Commission relied on Low Splint Coal Co. to deny, in February 1983, an application by Judge for a specially modified van to be permanently situated at his home. The Virginia Industrial Commission concluded that the requested van was “not any form of necessary medical attention.” Effective July 1, 1983, the Virginia legislature authorized the Industrial Commission to require employers, where medically necessary, to furnish wheelchairs, lifts, adjustable beds, and modification of the claimant’s principal home at a total cost not to exceed $10,000. See Va.Code Ann. § 65.1-88 (1980, 1984 Supp.). Judge applied to the Virginia Industrial Commission for further home modifications.

Maryland Casualty Company had already expended nearly $9,500 for wheelchairs for Judge and $2,400 in home modifications, consisting of a ramp to the front door and the widening of certain doors. The Virginia Commission held in March 1984 that this statute was retroactive, so that the insurer had no further obligation under Virginia law. Meanwhile, Judge filed a claim in October 1983 with the Maryland Workmen’s Compensation Commission (the Commission) seeking a specially equipped van, payment of electric bills, and further modifications to his residence. That claim was held to be timely filed.

Judge v. R & T Constr. Co., 68 Md.App. 57 , 509 A.2d 1236 , cert. denied, 307 Md. 433 , 514 A.2d 1211 (1986). At the hearing before the Commission in this matter, Judge and his wife testified. Testimony of Judge’s last witness, a rehabilitation consultant, was terminated by the Commissioner after counsel for Judge disclaimed a vocational rehabilitation theory and proffered the balance of the testimony would cover the psychological responses of quadriplegics.

The Commission’s award found that Judge was “not entitled to payment for increases in electric bills, a ⁵¹⁹ van, and further modifications to his home pursuant to [§ 37].” On appeal, the Circuit Court for Montgomery County at first ruled on motion that it would remand this case to the Commission. Then the circuit court reversed itself. That court and the parties interpreted the Commission’s order to hold, as a matter of law, that § 37 did not encompass claims of the type asserted by Judge. The circuit court ruled, as a matter of law, that the types of claims that Judge was asserting could be cognizable under § 37.

This case thereafter was tried before a jury. Judge, his wife, a psychologist, an architect, and, by deposition, an orthopedic surgeon from Craig Hospital testified. Judge presented no evidence to particularize the cost of his claims. The court submitted three issues to the jury, namely, whether Judge was entitled to each of the types of benefits sought.

The jury was told that it must find that each “benefit is reasonable and necessary to cure or relieve illness or disability of the claimant caused by the work related injury.” The jury answered yes to each issue. The circuit court entered a judgment reversing the Commission and ordering this case remanded to the Commission “for the entry of an order consistent with this decision and for further proceedings required by this decision.” R & T and its insurer appealed to the Court of Special Appeals. In addition to raising the three issues described above, they also argued that the denials by the Virginia Industrial Commission of the benefits requested by Judge in the instant matter prevented, by operation of the Full Faith and Credit Clause, U.S. Const, art. IV, § 1, or under Maryland public policy, the Commission from awarding the same benefits.

On the issue of the scope of § 37 the Court of Special Appeals held that increased electrical costs were recoverable. It also held that “given an appropriate factual predicate, § 37(a) may permit the ... Commission to order modifications to an ⁵²⁰ injured worker’s home, as well as providing, for the use of the injured worker, a specially modified and equipped van. Indeed, we believe that the latter fits quite comfortably within the Maryland statute—as an ‘other prosthetic appliance.’ ” R & T Constr.

Co. v. Judge, 82 Md.App. at 716 , 573 A.2d at 103 (footnote omitted). R & T’s full faith and credit argument was rejected. We granted R & T’s petition for certiorari, 321 Md. 46 , 580 A.2d 1066 . Additional facts will be stated as we address various issues in this opinion.

I We reject the full faith and credit argument advanced by R & T for the reasons given by the Court of Special Appeals in part 4 of its opinion. R & T Constr. Co., 82 Md.App. at 722-26 , 573 A.2d at 106-08 . R & T argues, however, that the Court of Special Appeals decided “the crucial constitutional issue ... without any consideration of the persuasiveness of the respective reasons supporting the various viewpoints on this issue.” Reply Brief of Petitioners at 6.

The Supreme Court of the United States, and not this Court, is the final arbiter of the meaning and application of the Constitution of the United States. R & T’s submission is that this Court should return to the rule of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 , 64 S.Ct. 208 , 88 L.Ed. 149 (1943), under which the orders of the Virginia Industrial Commission on the issues presented here would bar benefits under § 37(a) of the Maryland act. The Magnolia rule was severely limited in Industrial Comm’n of Wisconsin v. McCartin, 330 U.S. 622 , 67 S.Ct. 886 , 91 L.Ed. 1140 (1947), which held that “[o]nly some unmistakable language by a state legislature or judiciary would warrant” construing the award in the state where the employment contract was made as “completely exclusive [and] designed to preclude any recovery by proceedings brought in another state for ⁵²¹ injuries received there....” Id. at 627-28 , 67 S.Ct. at 889 , 91 L.Ed. at 1143 . In the Court’s most recent venture into this field, Thomas v. Washington Gas Light Co., 448 U.S. 261 , 100 S.Ct. 2647 , 65 L.Ed.2d 757 (1980), there was no majority opinion.

Consequently, MeCartin stands unreversed. Under MeCartin, this Court is not obliged to give the Virginia orders full faith and credit. As the Court of Special Appeals pointed out, absent a constitutional bar, Maryland does not prohibit supplementing the award made by one state with additional benefits available under the more liberal law of another state. See Wood v. Aetna Casualty & Sur.

Co., 260 Md. 651 , 273 A.2d 125 (1971). II The circuit court’s ruling that § 37(a) includes the cost of the electricity to operate reasonably necessary medical equipment and apparatus will be affirmed. Judge’s hospital bed and the stationary ventilator are electrically powered, as is a suction device used about every two hours to clear Judge’s lungs. The batteries for his mechanized wheelchair and for the portable ventilator must be recharged daily.

The physician from Craig Hospital testified that “[wjithout these types of devices in place, Mr. Judge would die of respiratory complications or ... he would succumb to skin breakouts and other sores which would be detrimental to his medical condition.” Under the circumstances, the cost of electricity for Judge’s medical equipment and apparatus, described above, does not appear to be de minimus. The problem here is not one of coverage by § 37(a), but of proof of the cost. If the parties are unable to agree on a system for determining electrical costs attributable to the running of this medical equipment, as contrasted with basic household expenses, the Commission will have to resolve the dispute. The claimant has also referred to his lack of normal bodily temperature controls to support a claim for some ⁵²² part of the cost of heating and air conditioning his residence, or at least, his room.

The record shows that, when Judge is out of doors, his temperature must be monitored every two hours. That indicates some tolerance to temperature change. Currently the air conditioning is furnished by two window units, purchased by the insurer, that are located on the level of the house above that of Judge’s bedroom. On this record the Commission could find that the air conditioning is medical treatment.

Ill Understanding the claim for modifications to the Judges’ residence involves the relationship of Judge’s catastrophic physical limitations to the home’s present and potential layouts. To describe the home we shall assume that it faces south. Currently only Judge and his wife reside there. The Judges’ home is a two-story structure, set into terrain which slopes down from back to front.

The rear of the first floor is below ground while the front entrance on the first floor is at grade. On the west side of the front lot is a driveway from which a ramp leads to the front door. The front door is at midpoint of the south wall. The door opens onto a foyer, three feet long measured from the south wall to the foot of stairs that go to the second level.

To the east of the entrance is Judge’s bedroom (11.5' by 21.5'). Next to Judge’s bedroom to the north, and along the north wall of the building is a utility room. Immediately west of the utility room is a full bathroom, separated on its south side from the back of the stairs by a corridor forty-two inches wide. The area west of the stairs from the front of the house to the back is a recreation room.

The doorways are twenty-seven inches wide between the foyer and Judge’s bedroom, and between Judge’s bedroom and the utility room, and between the utility room and the hall outside of the first floor bathroom. The door to that bathroom is twenty-one inches wide. That bathroom is too ⁵²³ small within which to maneuver the wheelchair, much less a gurney. The second floor of the house has a living room-dining room area on the west side, a kitchen on the north side, opposite the head of the stairs, and three bedrooms and a full bathroom on the east side.

There is an outside deck accessible through a sliding glass door in the north wall of the dining area. The twenty-seven inch doorways barely accommodate the width of Judge’s wheelchair. Pads on the arms of the chair scrape on the sides of those doorways. These pads have been replaced approximately every two years.

To get through the front door to the ramp, it is necessary for Judge’s attendant to push the wheelchair into the recreation room, open the front door which swings in toward Judge’s bedroom, and then maneuver the wheelchair between the foot of the stairs and the south wall, as if parallel parking an automobile. Judge’s wheelchair is equipped with a “sip and puff” control. By breathing in and out Judge can direct the mechanized chair forward and backward, but, because of the close clearances, he cannot navigate the twenty-seven inch doorways or the front door by the sip and puff control. Judge is sponge bathed in his hospital bed.

He has a permanent catheter installed between his navel and pubic area. When he is in the wheelchair the catheter bag is attached to his leg. Otherwise, it hangs from his bed. His bowels must be digitally stimulated by his attendant in order for them to function.

This process is conducted in his bed into a disposable receptacle. The attendant disposes of the stool in the bathroom. Because the issue before the circuit court was viewed to be whether home modifications for the handicapped could ever be ordered under § 37, Judge never requested a specific modification and never estimated the cost of any particular modification. Instead, Judge’s architectural witness described progressively more elaborate alterations and addi ⁵²⁴ tions to the home, and then the physician from Craig Hospital commented on those proposals.

The architect discussed three options, A through C. The principal features of option A were to increase the foyer area to forty-nine square feet by extending a seven foot wide section of the south wall containing the front door four feet to the south. The first floor bathroom would also be enlarged and redesigned. Option B added to option A an extension of the driveway to the north side of the house and construction of a second wheelchair access entrance on the north side of the home directly to the second floor level. Option C added to options A and B the construction of an . addition containing a commercial size elevator linking the first and second floor levels. 1 The physician, Dr. Robert R. Menter, gave two reasons for enlarging the first floor bath.

The first was to enable the attendant to give Judge a shower while he was lying on a gurney because “[w]e feel that the majority of the people in our country bathe with some form of bath or shower, and that [it] is appropriate for a disabled individual to have that type of similar bathing arrangement____” Secondly, an enlarged bathroom would permit the attendant to perform