Ralph v. Sears Roebuck & Co.

ALPERT, Judge. This appeal arises from a Workers’ Compensation claim for permanent partial disability benefits resulting from injuries sustained by Calvin T. Ralph (claimant), the deceased spouse of appellant, Anne M. Ralph. The Workers’ Compensation Commission denied permanent partial disability benefits to Mrs. Ralph, finding that claimant had not reached maximum medical improvement prior to his death from non-injury related causes. 1 This decision was appealed to the Circuit Court for Montgomery County, and a motion for summary judgment was granted for appellees, Sears Roebuck & Co. and Allstate Insurance Co. (employer/insurer), and denied to appellant. This appeal followed.

As restated by us for clarity, appellant asks: Did the trial court err in granting summary judgment when disputes of material fact existed and when granting summary judgment was either based on weighing the credibility of the evidence, or by making an erroneous determination as to substantive Maryland law (i.e., that posthumous permanent disability ratings are not permitted)? We answer in the affirmative and therefore reverse. Facts and Proceedings Calvin T. Ralph (claimant) sustained an injury on February 20, 1991, while working for appellee employer, Sears Roebuck ³⁹¹ & Co. He had arrived at a customer’s home for the purpose of repairing a clothes dryer, and when he proceeded to the backyard in order to inspect the dryer’s vent, he slipped and fell on some wet leaves on the homeowner’s patio steps. As a result of his fall, claimant sustained a severe back injury, necessitating his visits beginning on March 1, 1991, to Dr. Harikant Shah, an orthopedic physician.

Dr. Shah took x-rays, performed CAT scan studies, and EMG and nerve conduction studies. Claimant complained he was in considerable pain and discomfort, he had difficulty walking, and he was unable to sit or stand for extended periods. Dr. Shah initially prescribed medication and declared him to be “off work at this time, indefinitely.... ” Employer’s insurer began voluntarily paying claimant temporary total disability benefits. 2 Claimant continued to see Dr. Shah for his injury and he initiated a Workers’ Compensation claim on April 15, 1991. Several months later, in early June, 1991, Dr. Shah recommended that a lumbar myelogram be performed on claimant in order to confirm the precise nature of his injury.

Another physician, Dr. Nathan Moskowitz, concurred in this recommendation after performing a neurosurgical consultation on claimant on June 3, 1991. An independent medical examination was performed by Dr. Herbert Joseph on behalf of employer/insurer on June 4, 1991. Dr. Joseph felt that claimant would be able to return to work within two to four weeks of treatment consisting of mobilization and work hardening, 3 and therefore, employer/insurer refused to authorize the lumbar myelogram. Dr. Shah felt ³⁹² that Mr. Ralph was not a candidate for work hardening due to his inability to tolerate bending, sitting, or standing.

Claimant continued to see Dr. Shah every few weeks. In his notes of June 21, 1991, Dr. Shah indicated that he found claimant “totally disabled for any gainful employment” and prescribed only moist heat, hot showers, and rest at home. Thereafter, Dr. Shah continued to prescribe pain medication and advised claimant to continue heat and hot showers, to perform no lifting, and to do isometric exercises. Claimant remained in severe pain and discomfort.

In late June, claimant began having stomach pains and in August, 1991, he was diagnosed with colon cancer. Claimant died of colon cancer on November 9, 1991. On April 21, 1992, claimant’s widow, appellant, pursued his claim for permanent disability benefits, requesting a hearing on the nature and extent of Mr. Ralph’s disability. A hearing was conducted on March 30, 1993.

The evidence produced at the hearing included Dr. Shah’s notations from June 21 about Mr. Ralph’s treatment. There was also evidence offered in the form of a note from Dr. Shah to appellee insurer from that same date, in which the doctor concluded, “Whether [Mr. Ralph] be a candidate for a lighter job schedule is always a possibility, but at this time I do not feel that he is ready for that either.” In his affidavit, Dr. Shah explained the apparent ambiguity between his notes of June 21, and his letter to insurer: 6. [I]t was my opinion as to a reasonable degree of medical certainty or probability within my field as an orthopedic surgeon that as of June 21, 1991, Mr. Ralph was totally disabled from any gainful employment and could not ever return to gainful employment as a result of his work related injury of February 20, 1991 :J{ ^ ^ 8. What I was expressing in said statement [to insurer] was that anything is possible, but by no means did I express an opinion to a reasonable degree of medical certainty that Mr. Ralph would be a candidate for a lighter job schedule ³⁹³ sometime in the future. I was simply speculating by stating that anything may be possible, but I did not feel Mr. Ralph would ever work again. 9.

That I further believed that Mr. Ralph reached maximum medical improvement on June 10, 1991, after further diagnostic studies were refused by the insurance company. 10. That at no time did Mr. Ralph’s condition regarding his ability to return to work change. It is my opinion to a reasonable degree of medical probability that from June 10, 1991 throughout the rest of Mr. Ralph’s life that he was unable to return to any gainful employment because of his work related injuries and was permanently totally disabled from working. Further, in his report dated March 9, 1992, Dr. Shah opined that claimant had a 50 percent permanent partial disability in the lumbar spine, total body disability of 40 percent, and disability to return to his previous job at 100 percent. 4 This evaluation of impairment was based on the American Medical Association’s guidelines.

Additionally, claimant’s internist, Dr. G. Peter Pushkas, in a report also prepared after claimant’s death dated October 28, 1992, indicated that his patient had an “obvious inability to move freely because of persistent severe back pain.” Dr. Pushkas concluded that it was his “medical opinion that [claimant’s] back pain and lower extremity pain/weakness was entirely related to his injury and could not possibly be explained by his intra-abdominal malignancy. Even after the finding of the disease and his surgery, a significant proportion of his problems were directly related to his job related injury.” The Commission issued an Order on April 20, 1993, finding that Mrs. Ralph, although an eligible plaintiff, was not entitled to any permanent partial disability benefits because claimant had not reached maximum medical improvement prior to his death. Mrs. Ralph appealed the Commission’s finding to the ³⁹⁴ Circuit Court for Montgomery County, naming as defendants her husband’s employer, Sears Roebuck & Co., and their insurance carrier, Allstate Insurance Co. Cross-motions for summary judgment were filed by both sides, and oral argument was heard on October 13, 1993. In Mrs. Ralph’s motion, she asked the court to find that Mr. Ralph had, as a matter of law, reached maximum medical improvement prior to his death.

This motion was denied, the court finding that there was a genuine dispute of material fact as to whether Mr. Ralph had reached maximum medical improvement. The judge granted appellees’ motion for summary judgment, however, holding .that as a matter of law, there could not have been enough evidence for a decision to be made- as to industrial loss of use. Mrs. Ralph filed a Motion to Alter or Amend Judgment, arguing that a determination of the claimant’s industrial loss of use could be made based upon the undisputed medical facts in the record and, at minimum, the various medical records in evidence on the issue of claimant’s ability to return to work were ambiguous, thereby creating a dispute as to a material fact whether Mr. Ralph could have ever returned to work. This motion was denied on November 26, 1993, and the decision granting appellees’ cross-motion for summary judgment was affirmed.

This appeal followed. Workers’ Compensation Law and Procedure A brief explanation of some basics of workers’ compensation law is necessary in order to understand the critical issues in this case. Workers’ Compensation benefits exist to mitigate the economic loss confronted by a worker who is injured on the job. R. Gilbert & R. Humphreys, Maryland Workers’ Compensation Handbook, § 9.0 (1988).

One type of benefit available is for disability, and disability benefits are granted to provide compensation for lost wages or loss of earning capacity that results from accidental injuries or occupational diseases. Id. at § 9.0-2. Disabilities are classified into several ³⁹⁵ categories, including: temporary partial, 5 temporary total, 6 permanent partial, 7 and permanent total. 8 Id. Temporary disability benefits are properly awarded until the point that an injured employee is restored as far as possible given the permanent character, if any, of his injuries.

Alexander v. Montgomery County, 87 Md.App. 275, 285, 589 A.2d 563 (1991) (citing Jackson v. Bethlehem-Fairfield Shipyard, Inc., 185 Md. 335, 339 , 44 A.2d 811 (1945)). Thereafter, permanent disability benefits may be awarded. In order to determine at what point permanent disability is allowed, the time of an injured employee’s “maximum medical improvement” must be ascertained. Alexander, 87 Md.App. at 286, 589 A.2d 563 . “Maximum medical improvement” is reached when the injured employee is at a point of stability and has received the maximum benefit of interventional medical care.

Id. at 279 , 589 A.2d 563 . When an employee has reached maximum medical improvement, a doctor can then evaluate the nature and extent of the impairment to determine industrial loss of use of the employee’s body. Section 9-627 of the Labor & Employment Article classifies the body into two categories for purposes of award ³⁹⁶ ing permanent partial disability. Md.Code Ann., Labor & Empl. § 9-627 (1991).

One category is “scheduled members;” and the other is “other cases.” Since back injury does not appear under the list of “scheduled members,” it fits within the “other cases” category for these purposes. In order to award compensation in claims of “other cases” injuries, the Workers’ Compensation Commission must determine the percentage of industrial loss of use of the employee’s body that was attributable to the injury. 9 Gilbert & Humphreys, § 9.4-2. In Hall v. Willard Sand and Gravel Co., 60 Md.App. 260, 264 , 482 A.2d 159 (1984), this Court found that, under former Md.Ann.Code- art. 101, § 36(3)0’) (1957), 10 . [t]he difference between wages earned by a claimant at the time of an accident and the post-injury earnings of the injured employee is one of several relevant factors which a trier of fact may consider in deciding the amount of loss of industrial use of an employee who has suffered permanent partial disability. In addition to post-injury earnings, other relevant factors for evaluating disability in “other cases,” and ascertaining an employee’s industrial loss of use of the body include: 1. physicians’ opinions on medical disability; 2. the claimant’s occupation; 3. the relationship between the physical disability caused by the injury and the activities, duties and requirements of the claimant’s occupation; 4. the claimant’s occupational experience and work history; 5. the claimant’s level of training ... ³⁹⁷ 6. the claimant’s age....

Gilbert & Humphreys, § 7.4. In the case sub judice, Mr. Ralph suffered a lower back injury after falling during the course of his employment. Lower back injuries are considered “other cases” for purposes of workers’ compensation. Mr. Ralph’s employer/insurer voluntarily paid him temporary total benefits from the time of his accident up until the time of his death.

Mrs. Ralph’s claim which she appealed was for permanent partial disability payments, from the time she asserts Mr. Ralph reached maximum medical improvement until the time of his death. Discussion Appellant first contends that the trial court erred in granting appellees’ summary judgment motion because numerous disputes of material fact existed. First, there was a dispute as to whether Mr. Ralph had reached maximum medical improvement prior to his death. Second, there was a dispute as to whether Mr. Ralph could have returned to work following his injury.

Third, a dispute existed over whether Mrs. Ralph could provide the evidence necessary to support a claim for industrial loss of use. Because of these genuine disputes of material fact, appellant asserts that appellees’ summary judgment motion was improperly granted. Appellees concede that there was a genuine dispute as to whether Mr. Ralph had reached maximum medical improvement prior to his death, and explain that this is why Mrs. Ralph’s summary judgment motion was not granted. Appellees argue that their motion, however, was properly granted because the judge found that it would be impossible for Mrs. Ralph to produce “the necessary evidence to make a determination on the [cjlaimant’s industrial loss of use,” thus, there was no genuine dispute of a material fact.

The standard by which this Court must review the granting of a summary judgment motion is first, to determine whether there were any genuine disputes of material fact and if not, then to determine whether the moving party was ³⁹⁸ entitled to judgment as a matter of law. Eastern Savings Bank, F.S.B. v. Nardo, 85 Md.App. 702, 708 , 584 A.2d 1301 (1991). All inferences must be resolved in favor of the non-moving party. Id., The summary judgment motion granted by the lower court was on the issue of whether Mrs. Ralph could produce enough evidence to prove industrial loss of use, even assuming arguendo that Mr. Ralph had reached maximum medical improvement prior to his death.

Appellant points out that it appears the lower court did one of two things in granting appellees’ summary judgment motion; either the judge weighed the evidence before her and found that there was not enough to prove Mrs. Ralph’s claim, or, she made a legal decision that posthumous permanent disability ratings were inadmissible. It is erroneous for the lower court judge to weigh the evidence before her to make a determination that involves a genuine dispute of material fact. See Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93 , 122 A.2d 563 (1956) (holding that where the record shows a genuine conflict, the court may not attempt to decide any issue of fact or of credibility). The evidence before the judge consisted of conflicting opinions of medical experts on the nature and extent of claimant’s disability, including reports made prior to claimant’s death and determinations made after his death.

Whether this evidence supported Mrs. Ralph’s claim is a question for a factfinder. Because it appears from the record that the lower court judge did not make a ruling on the credibility of the evidence, we must address appellant’s second contention, that the judge’s ruling was based on her belief that because claimant had passed away prior to any adjudication of his benefits, Mrs. Ralph could not produce the required evidence to support her claim. The judge explained: The respondent also has filed a Motion for Summary Judgment based on the legal position that on the circumstances and facts of this record there could not be • before the Commission, because of what happened and how it hap ³⁹⁹ pened and the timing and the fact that hearings were never held, there cannot be the necessary evidence presented by the claimant before a commission to show industrial loss of use as it relates to the back injury because what would have to be done was not able to be done prior to Mr. Ralph’s death, and both claimant and respondent cite to the same cases, the Richardson case and the Thomas case, as being supportive of each position. I have reviewed those cases, and I think the rulings in those cases support the position of the employer in this particular case, this being very fact-specific just to the circumstances which arose and the timing of how it arose and what had occurred before Mr. Ralph’s death, and I am going to make a finding and a ruling that as a matter of law, in this case I don’t see how there could be presented the necessary evidence for a decision to be made as to industrial loss of use, which I think is required in this case before there could have been a determination made that the claimant was seeking, and therefore, I am going to grant the respondent employer’s Motion for Summary Judgment in the case.

Appellees argue that since the judge clearly stated that she felt that their position was supported by the case law, she accepted the argument in their cross-motion for summary judgment, specifically that: (1) posthumous medical opinions on maximum medical improvement and permanent partial impairment cannot be used to support a finding of industrial loss of use of the body; (2) there was no prior testimony by claimant or opportunity for appellee to cross-examine him prior to his death; and (3) there was no evidence at all of the claimant’s loss of earning capacity. We shall address each issue separately, explaining why we disagree with appellees’ argument and the granting of their summary judgment motion. Posthumous Medical Opinions In the case sub judice, Dr. Shah formally rated the permanency of Mr. Ralph’s injuries subsequent to his death. ⁴⁰⁰ An informal rating, however, was made prior to Mr. Ralph’s death. As noted earlier, Dr. Shah’s notes of June 21, 1991, evaluated the claimant as being “totally disabled for any gainful employment.” Read in the light of his affidavit, those notes appear to be an informal disability rating.

Appellant argues that in order to recover permanent partial disability benefits, it is not required that a rating of the extent and permanency of an employee’s injuries be done prior to his death. Appellees disagree, contending that posthumous medical opinions are based purely on speculation and conjecture and, therefore, cannot be used as evidence of the permanency of the disability. Further, appellees posit that without the opportunity to examine claimant prior to death but after the point of reaching maximum medical improvement, a physician “cannot possibly formulate a competent and reliable opinion regarding the extent of the permanent physical impairment which is due to the accidental injury.” Both parties rely on State Dept. of Motor Vehicles v. Richardson, 233 Md. 534 , 197 A.2d 428