R & T CONSTRUCTION CO. v. Judge

ROBERT M. BELL, Judge. This is an appeal by R & T Construction Company and its insurer, Maryland Casualty Company, appellants, from a judgment in favor of Thomas C. Judge, appellee, entered, on a jury verdict, by the Circuit Court for Montgomery County. It raises four issues, namely: 1. Whether the lower court erred in denying appellant’s motion for judgment and in ruling that, as a matter of law, further home modifications, a specially equipped van for non-medical purposes and increased electrical expenses were covered under Maryland Annotated Code, Art. 101, § 37. 2.

Whether the lower court erred in allowing Dr. Robert Menter to testify that the appellee is in need of a van modified for non-medical purposes. 3. Whether the lower court erred in allowing a psychologist to testify as to claimant’s need for home modifications and his need of a van modified for his use for non-medical purposes. 4. Whether the lower court erred in ruling that the Maryland Workers’ Compensation Commission had jurisdiction over this case. We answer each of the questions in the negative, thus, we will affirm the lower court’s judgment. ⁷⁰⁴ The facts are, for the most part, undisputed.

Appellee, while employed as a construction worker for a Virginia based employer, was seriously injured in an accident arising out of and in the course of his employment. The accident occurred in Gaithersburg, Maryland in October, 1981. As a result of the injuries he received, appellee was rendered a respirator-dependent quadriplegic, requiring around-the-clock nursing care. Although he initially filed a claim with the Maryland Workers’ Compensation Commission, he later voluntarily withdrew it, in order to file a claim with the Virginia Industrial Accident Commission.

Appellee was, and is, a resident of Virginia. The Virginia Commission “awarded ... Judge compensation benefits during the course of his disability, and further awarded him medical benefits for as long as required.” Notwithstanding that appellants had made certain modifications to appellee’s home — constructing a ramp and installing air conditioning — and supplied appellee with a specially equipped van to provide transportation for medical purposes, on two subsequent occasions, appellee filed applications with the Virginia Commission seeking additional benefits. On the first occasion, he sought to purchase “a van to be permanently situated at his home on a 24 hour per day basis that would allow him to leave his home and ultimately give him more freedom of movement____” On the second occasion, he sought additional modifications to his home, which would “make it accessible for his uses as a wheelchair bound quadriplegic accident victim.” Judge v. R & T Construction, 68 Md.App. 57, 59 , 509 A.2d 1236 , cert. denied, 307 Md. 433 , 514 A.2d 1211 (1986).

The Virginia Commission denied both applications. 1 The ruling on the home modifications was premised on the employer and ⁷⁰⁵ insurer having exceeded the statutory liability limits. Appellee did not seek as he did here, reimbursement of the increase in utility expenses necessitated by the life support and other medically required equipment he must use. Appellee filed another compensation claim in Maryland. 2 In his application, appellee sought from the Maryland Commission the same relief that the Virginia Commission had just denied, namely, additional modifications to his home for purposes of making it wheelchair accessible and a modified van for transportation purposes other than medical appointments. In addition, he sought reimbursement of the increases in electrical expense necessitated by the life support systems and other equipment he had to use.

Although the Commission determined that it had jurisdiction to entertain ⁷⁰⁶ the claim and that it was not barred by limitations or precluded from acting by Article 101 § 21(c)(4), 3 it found “that the claimant is not entitled to payment for increases in electric bills, a van, and further modifications to his home pursuant to the provisions of Art. 101, sub-section 37.” Appellee appealed to the circuit court, challenging only the Commission’s interpretation of § 37(a). Appellants like ⁷⁰⁷ wise appealed; they challenged the Commission’s determination that it had jurisdiction over the case. Both sides moved for summary judgment. Appellants sought summary judgment on the jurisdictional issue and appellee sought partial summary judgment with respect to the interpretation of § 37(a).

The circuit court denied appellants’ motion, but granted appellee’s. It entered partial summary judgment, on the grounds presented, in favor of appellee. The case was then set for jury trial “for the purpose of determining the extent of benefits, if any, which the claimant should receive, under § 37 of the Act____” At the conclusion of the trial, the jury returned special verdicts in favor of appellee, finding that he was entitled to home modifications, a modified van, and reimbursement for increased utility costs. This appeal followed. 1 As phrased by appellants, the first issue presented has two aspects.

The first involves the interpretation of § 37(a). As to it, appellants maintained below, as they do on appeal, that the court erred in interpreting § 37(a) to include “non-medical-type treatment, apparatus, and the like.” The second aspect relates to the sufficiency of the evidence to support the jury’s verdict. As to it, appellants assert that the evidence presented at trial was wholly insufficient to support the jury’s verdicts. We will address each aspect separately.

A. INTERPRETATION Maryland Code Annotated Art. 101, § 37(a) provides: (a) Employer to provide medical, etc., treatment and services. — 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, crutches, apparatus, artificial hands, arms, feet and legs and other prosthetic applicances as may be required by the ⁷⁰⁸ Commission, provided, however, that any order or award of the Commission, under this subsection, shall not be construed to reopen any case, or permit any previous award to be changed or modified, except as provided in § 40(c) and 40(d) of this article. In Harris v. Janco Enterprises, 53 Md.App. 674, 677 , 455 A.2d 453 (1983), this Court, referring to the appropriate interpretation of § 37(a), observed: “It is perfectly clear that this language deals with medical services necessary or desirable to treat the effects of the injury, and not with services rendered by physicians solely for the purpose of evaluating the extent of disability in order to present testimony on that issue.” At issue in that case was, as is obvious from the above, the question whether § 37(a) covered fees paid to an evaluating physician for his or her testimony at a hearing. Except as to the issue directly presented, the court was not called upon to interpret what constitutes “medical services”. As such, it had no occasion to address the meaning of “other attendance”, “apparatus”, and “other prosthetic appliances”.

In fact, this issue has never been addressed by any Maryland court. It is our task to undertake that interpretation now. We approach this task fully aware that, consistent with Maryland Code Annotated Art. 101 § 63, “this article shall be so interpreted and construed as to effectuate its general purpose” — as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Soper v. Montgomery County, 294 Md. 331, 335 , 449 A.2d 1158 (1982); Howard County Association for Retarded Citizens v. Walls, 288 Md. 526, 530 , 418 A.2d 1210 (1980); W.C. & A.N. Miller Development Company v. Honaker, 40 Md.App. 185, 189 , 388 A.2d 562 (1978), aff'd, 285 Md. 216 , 401 A.2d 1013 (1979).

Furthermore, where a provision of the Workers’ Compensation Act is ambiguous, the uncertainty or conflict should be resolved in favor of the claimant. Ryder Truck Lines v. Kennedy, 296 Md. 528, 537 , 463 A.2d 850 (1983). Coats & Clark’s Sales Corp. v. Stewart, 39 Md.App. 10, 16-17 , 383 A.2d 67 ⁷⁰⁹ (1978); Keene v. Insley, 26 Md.App. 1, 11-12 , 337 A.2d 168 (1975). Of course, “neither statutory language nor legislative intent can be stretched beyond the fair implication of the statute’s word or its purpose,” Soper v. Montgomery County, 294 Md. at 335 , 449 A.2d 1158 , in order to create ambiguity or conflict.

Rather, any construction of the Workers’ Compensation Act should take account of its clear meaning. In other words, a construction should not disregard the plain language of a provision of the Act in order to create a conflict of ambiguity so that the provision may be interpreted in favor of the injured worker. See Crowner v. Baltimore United Butchers Association, 226 Md. 606, 610 , 175 A.2d 7 (1961). As we have seen, we have construed § 37(a) as dealing with “medical services”.

Neither this Court nor the Court of Appeals has, however, been faced with the question of what “medical services” specifically entails. On the other hand, a noted commentator has observed that “Medical benefits ordinarily include not only medical and hospital services and nursing care, which may be compensable even when supplied at home by a member of claimants’ family but also necessary incidentals such as transportation, appartus, supplies, and sometimes even special housing facilities.” 2 Larson, Workmen’s Compensation Law (1989), § 61.00. See also Squeo v. Comfort Control Corporation, 99 N.J. 588 , 494 A.2d 313 (1985); Derebery v. Pitt County Fire Marshall, 347 S.E.2d 814 (N.C.1986) rev’g, 76 N.C.App. 67 , 332 S.E.2d 94 (1985); Peace River Electric Corp. v. Choate, 417 So.2d 831 (Fla.App.1982), Pet. for Rev. dism., 429 So.2d 7 (Fla.1983). This is to be contrasted with cases from other jurisdictions which narrowly construe “medical services”.

See e.g. Low Splint Coal Company, Inc. v. Bolling, 297 S.E.2d 665 (Va.1982); Savaria v. DiSano, 118 R.I. 357 , 373 A.2d 820 (1977). In Bolling , the claimant was a paraplegic confined to a wheelchair. He sought construction of a concrete ramp and ⁷¹⁰ modifications to his bathroom.

Although the Virginia Industrial Commission granted the relief, the lower court reversed. The Virginia Supreme Court affirmed the lower court. The statute at issue in that case provided: As long as necessary after an accident the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer and such other necessary medical attention, and where such accident results in the amputation of an arm, hand, leg or foot or the enucleation of an eye or the loss of any natural teeth or loss of hearing, the employer shall furnish prosthetic appliances, proper fitting thereof, and training in the use thereof, as the nature of the injury may require ... and in addition, such surgical and hospital service and supplies as may be deemed necessary by the attending physician or the Industrial Commission. 4c 4* 4« 4s 4* 4* The employer shall also furnish or cause to be furnished, at the direction of the Industrial Commission, reasonable and necessary vocational rehabilitation services. (Emphasis added) Code of Virginia, 65.1-88 (Repl.Vol.1980).

Construing this statute, the Court concluded that “other necessary medical attention” was limited to services and, thus, did not contemplate structural renovations. Nor did the phrase “reasonable and necessary vocational rehabilitation training services” encompass such renovations. 297 S.E.2d at 667 . Indeed, the Court said, “the employer [was] responsible for providing only those services and those prosthetic appliances specifically delineated in the statute.” 297 S.E.2d at 668 . In short, the Supreme Court opined that the statute “cannot properly be read to include the structural improvements in question as either ‘other necessary medical attention’ or ‘reasonable and necessary vocational rehabilitation ⁷¹¹ training services.’ ” Id., 297 S.E.2d at 666 . 4 The statute at issue in Savaria, supra, provided, in pertinent part: The employer shall ... promptly provide for an injured employee such reasonable medical, surgical, dental, optical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus for such period as is necessary, in order to cure, rehabilitate or relieve the employee from the effects of his injury and to restore the function of the injured member organ where such restoration is possible____ In that case, the claimant, who was unable to use his legs and could barely move his arms, sought to be provided with an electric wheelchair and an automatic lift or elevator.

Interpreting the statute, the Workmen’s Compensation Commission granted the request for a wheelchair but denied the request for the automatic lift or elevator. The Supreme Court of Rhode Island affirmed. Interpreting the statute, and notwithstanding testimony from the treating physician that although the claimant’s health would not be improved or his mobility increased, the claimant would benefit from the automatic lift or elevator because it would relieve him from the effects of his injury, the Court concluded that “it [was] not enough that the means used to relieve the employee from the effects of his injury [had] been prescribed by [a] physician; to be chargeable to the employ ⁷¹² er under the statute, they must be medical in nature as well.” 373 A.2d at 822 . Those cases in which home modifications have been permitted evidence application of a broader interpretation of what constitutes “medical services”.

In Squeo , for example, the claimant, a quadriplegic, sought construction of a self-contained apartment to be attached to his parents’ home. The statute pursuant to which the application was made required the employer to furnish the injured worker “such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible ...” and, where “an artificial limb or other appliance” may partially or completely relieve the effects of the permanent injury, to supply such artificial limb or other appliance. N.J.S.A. 34:15-15. The evidence in support of the application demonstrated that the claimant, who had been placed in a nursing home predominantly inhabited by elderly residents, had attempted suicide on three occasions; expert testimony tended to prove that a change in his environment would have a beneficial effect on the claimant’s state of mind and, conversely, that more suicide attempts would occur should he remain in the nursing home; other expert testimony was to the effect that the claimant’s “ability to choose his own living environment was the ‘utmost important issue’ for his physical and psychological health.” 494 A.2d at 315, 316 .

The Supreme Court affirmed the decision of both the Compensation Commission and the appellate division of the Superior Court. Construing the act “so as to comport with its presumptive beneficient and remedial objectives favorable to the injured workman”, the Court held: “... [Ujnder certain unique circumstances, when there is sufficient and competent medical evidence to establish that the requested “other treatment” or “appliance” is reasonable and necessary to relieve the injured worker of the effect of his injuries, the construction of an apart ⁷¹³ ment addition may be in the ambit of N.J.S.A. 34:15-15. We caution, however, that it is only the unusual case that may warrant such extraordinary relief.” Squeo, 494 A.2d at 322 . Derebery, supra, is to like effect.

There, the Supreme Court of North Carolina construed the phrase “other treatment or care” as used in that State’s Act, 5 as including treatment or services not specifically delineated in the statute. 347 S.E.2d at 819 . As was the case in Squeo , the Court relied upon testimony from claimant’s physician that claimant had a need of “architecturally modified housing”, id., 347 S.E.2d at 822 , and testimony of a registered nurse that separate modified housing would meet the claimant’s emotional needs. Id., 347 S.E.2d at 816 . In addition, the Court noted that the applicable statute had been legislatively expanded since its initial enactment. 347 S.E.2d at 819 .

See also Peace River Electric Corp. v. Choate, 417 So.2d 831 (Fla.App.1982), Pet. for Rev. dism., 429 So.2d 7 (Fla.1983); Rieger v. Workmen’s Compensation Appeal Board, 104 Pa.Cmwlth. 42 , 521 A.2d 84, 87 (1987) (If a “wheelchair is necessary, then it logically follows that minor modification needed to facilitate use of the appliance must also be considered a necessity”); Langford v. William Rogers, Inc., 144 A.D.2d 785 , 534 N.Y.S.2d 761 (3 Dept.1988) (the phrase “other attendance or treatment” provides authority for ordering carrier to pay for reasonable modifications to facilitate use of a wheelchair); Terry Grantham Company v. Industrial Commission of Arizona, 154 Ariz. 180 , 741 P.2d 313 (App.1987); Butler v. Lanzo Construction Company, 509 So.2d 965 (Fla.App.1987); Zylbergleit v. Irving Rubber & Metal Company, 87 A.D.2d 929 , 450 N.Y.S.2d 87 ⁷¹⁴ (1982); Pine Bluff Parks and Recreation v. Porter, 6 Ark.App. 154 , 639 S.W.2d 363 (1982). A similar situation exists as to appellee’s request for a modified van. In Terry Grantham Company, supra, the Arizona Court of Appeals rejected an insurer’s argument that a “van, unlike a wheelchair, is ‘merely a form of transportation which allows one to travel [a] greater distance in a shorter period of time.’ ” 741 P.2d at 316 . As in the instant case, the claimant was a quadriplegic whose injuries resulted in loss of control over his body temperature.

Commenting on this fact, the Court stated: As a result of Boy’s industrial injury, he has lost, among other things, his ability to perspire, and he is therefore exposed to the danger of his body temperature reaching critical levels. For Boy, a wheelchair is simply inappropriate for travel beyond limited distances. Id. The Court thus interpreted “other apparatus”, as used in the statute, 6 as an apparatus required to replace a lost bodily function.

It agreed with the administrative law judge’s finding that “the van was a reasonably required ‘other apparatus’ ” under the statute. Id. See also Edgewood Boys’ Ranch Foundation v. Robinson, 451 So.2d 532 (Fla.App.1984), aff'd, 456 So.2d 1270 (Fla.App.1984), in which the Court affirmed a workers’ compensation order requiring the employer to furnish quadriplegic claimant with a specially-equipped van, an order which it determined to be fully substantiated by claimant’s doctor. The Court in Terry Grantham Company adopted reasoning that “Where an industrial injury necessitates the modification or substitution of an automobile in order to accomodate a wheelchair or artificial member and to restore in part a ⁷¹⁵ claimant’s former ambulatory ability, such costs may be awarded as “other apparatus” [pursuant to the act]”.

(Citation omitted) Fidelity & Casualty Company of New York v. Cooper, 382 So.2d 1331, 1332 (Fla.App.1980). 741 P.2d at 316 . There are, of course, cases on the other side of this issue as well. See 2 Larson, Workmen’s Compensation Law, § 61.13(a), p. 10-863 and cases there cited. Those cases turn upon an interpretation of “medical apparatus or device” and, generally, reflect that that interpretation is approached from a narrow perspective.

See e.g. DeCroix v. Sumergrade and Sons, 20 A.D.2d 735, 246 N.Y.S.2d 852 (3 Dept.1964) where claimant fractured his leg resulting in limitation of his motion at the ankle, traumatic arthritis of the ankle and an ankle ulcer, an automobile held not to be “medical apparatus or device” and, hence, commission award with respect to the cost of driving the claimant’s car to and from the work was reversed. 7 Nallan v. Motion Picture Studio Mechanics Union, Local #52, 49 A.D.2d 365 , 375 N.Y.S.2d 164 (A.D. 3 Dept.1975), rev’d on other grounds, 40 N.Y.2d 1042 , 391 N.Y.S.2d 853 , 360 N.E.2d 353 (1976) (same, applied to a paraplegic); Kranis v. Trunz, Inc., 91 A.D.2d 765 , 458 N.Y.S.2d 10 (3 Dept.1982) (same); McDonald v. Brunswick Electric Membership Corp., 77 N.C.App. 753 , 336 S.E.2d 407 (App.1985) (specially equipped van for use of a double amputee did not qualify as “other treatment or care” or “rehabilitative services” as those terms are used in the workers’ compensation statute 8 ). We find more persuasive those cases in which the terms “medical treatment” and the like are interpreted ⁷¹⁶ more broadly. Moreover, we believe such an interpretation of such terms is consistent with the statutory mandate that this social legislation be interpreted liberally and in favor of those whom it was designed to protect.

Therefore, we hold that, given an appropriate factual predicate, § 37(a) may permit the Workers’ Compensation Commission to order modifications to an 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.” 9 Appellants maintain that, with regard to increased electrical expenses, § 37(a) contains no category covering this benefit. Thus, while they do not maintain that the electrical devices furnished appellee are not necessary medical treatment or apparatus, they nevertheless argue that the increased utility bills are not themselves “medical, surgical, attendance, treatment or apparatus”, even under the most liberal view of those terms. At oral argument, however, appellants all but conceded the illogic of their position.

It makes absolutely no sense for a statute to require an employer to furnish an injured worker with equipment, and yet not require that same employer to supply that same injured worker the means with which to operate it. This is particularly true when the equipment is necessary for the preservation of the injured employee’s life. We hold that the amount of the increase of the utility bills in respect of the electrical apparatus necessary to maintain appellee’s life is covered by § 37(a), encompassed within the phrase “other attendance”. 10 ⁷¹⁷ B. SUFFICIENCY Appellants assert that the evidence adduced in the instant case is insufficient to sustain the jury’s verdict. 11 They do so on the basis of a comparison of the facts sub judice with those in cases in which courts have ordered modifications to an injured employee’s home and, in particular, Squeo and Peace River Electric Corp. In their view, the facts of the instant case compare unfavorably; they characterize them as less extreme and less fraught with human misery. Appellants perceive the following passage from Squeo as illustrative of the difference between the facts in that case and the facts sub judice: Apart from his quadriplegia, which cannot be reversed, and physical complications, which are treated as they arise, Squeo has suffered serious psychological setbacks.

No one disputes that these emotional problems are a result of his work-connected injury and its consequences. Nor is it disputed that Squeo’s depression is so aggravated by living in the nursing home that he has tried to kill himself on three occasions. We find these three factors —Squeo’s unremitting physical ailments, his age and his having lived independently of his parents for several years prior to the accident, and his psychological dread of institutional living, culminating in three suicide attempts — are sufficient to consider this an unusual case calling for unusual relief. Moreover, we find that competent medical testimony exists on this record to hold that the construction of the ⁷¹⁸ apartment addition was reasonable and necessary treatment to relieve Squeo of his severe mental depression---- 494 A.2d at 322 .

After recapitulating the testimony concerning the detrimental effect of Squeo’s continuing to live in the nursing home, the Court continued: We stress that in determining what is reasonable and necessary, the touchstone is not the injured worker’s desires or what he thinks to be most beneficial. Rather, it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him. Here, that relief is of a psychological nature. The source of Squeo’s severe mental depression is his fear of institutionalization.

The testimony of all witnesses substantiate that this psychological disturbance can be relieved only by Squeo’s