Sears, Roebuck & Co. v. Ralph

RODOWSKY, Judge. In this workers’ compensation ease the claim is for permanent total disability allegedly resulting from a low back injury suffered by a claimant who died while receiving temporary total disability compensation and who, months after his death, was rated for permanency by his former treating physician. The employer and insurer contend that a posthumous rating is incompetent evidence, per se, in “other cases” determinations, and, in any event, that the medical history of this claimant is legally insufficient to support an “other cases” determination. The Workers’ Compensation Commission (the Commission) denied the claim, and, by summary judgment, the Circuit Court for Montgomery County agreed.

The Court of Special Appeals reversed. Ralph v. Sears, Roebuck & Co., 102 Md. App. 387 , 649 A.2d 1179 (1994). On the petition of the employer and insurer, we issued the writ of certiorari. For the reasons explained below, we affirm the Court of Special Appeals.

Calvin T. Ralph, Sr. (Claimant), now deceased, was the husband of the respondent, Anne M. Ralph (Mrs. Ralph). Claimant was employed to service and repair appliances by one of the petitioners, Sears, Roebuck and Company, Inc., whose compensation carrier is the petitioner, Allstate Insurance Company. The employer and insurer are hereinafter collectively referred to as “Sears.” On February 20, 1991, ³⁰⁷ Claimant, then age 60, slipped and fell on wet leaves on patio steps at a customer’s house while going to inspect a dryer vent. He injured his lower back in the fall.

Thereafter Sears paid Claimant temporary total disability compensation until his death of unrelated causes on November 9, 1991. Complaining of low back pain, with pain radiating to both hips, Claimant saw Dr. Harikant C. Shah on March 1, 1991. X-rays revealed disc narrowing, osteophyte formation, and degenerative changes. Dr. Shah prescribed conservative treatment.

Following a visit on March 15 Dr. Shah ordered a CT scan. It revealed “[s]evere degenerative disc and bony disease at all levels. The regions of most severe disease with probable nerve root impingement are L2-3 on the right, L3-4 on the right, and L4-5 on the left.” Thereafter Dr. Shah saw Claimant on five occasions between April 8 and May 31. During that period the form, “Notice of Employee’s Claim,” was filed with the Commission by or on behalf of Claimant.

Dr. Shah also referred Claimant to Dr. Nathan C. Moskowitz for a neurosurgical evaluation that was performed on June 3. Dr. Moskowitz concluded that, “[i]n order to adequately define [Claimant’s] nerve roots and come up with a rational therapeutic decision, it will be necessary for him to have a myelogram followed by a CT scan.” The next day the Claimant was examined and evaluated at the request of Sears by Dr. Herbert H. Joseph. Dr. Joseph diagnosed “residual low back strain.” He found “[t]he straight leg raising test and neurologic exam [to be] completely negative.” He saw no reason for surgical intervention or for further diagnostic studies. He recommended “a short course of mobilization ... as well as some work hardening.” He anticipated “improvement, with return to work on a light duty status within two to four weeks of instituting treatment.” In light of Dr. Joseph’s report, Sears would not agree to pay for a myelogram.

Thereafter Claimant was seen by Dr. Shah on June 10 and 21. Of significance to the instant claim is Dr. Shah’s note of the latter visit. It reads as follows: ³⁰⁸ “Patient’s lumbar spine pain continues. Patient has increased left leg pain.

Straight leg raising test is positive on the left side. Patient walks with a limp and he has difficulty walking on the toes. Patient is totally disabled for any gainful employment; moist heat, hot showers, rest at home. Reevaluation in 2 weeks.” That same day Dr. Shah wrote to Sears saying in part: “I do not feel that [Claimant] is a candidate for any work-hardening program, since he will not be able to tolerate bending and sitting or standing at this time.

Whether he will 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.” Claimant saw Dr. Shah on July 8,17, and 29 and on August 7 and 30. On all occasions when Dr. Shah saw Claimant, Dr. Shah recorded notes of Claimant’s complaints and of Dr. Shah’s observations and recommendations. In late August 1991 Claimant was diagnosed with colon cancer that had metasticized to the liver. He underwent surgery in September and died in November 1991.

Mrs. Ralph continued the claim pursuant to Md.Code (1991), §§ 9-640 and 9-632 of the Labor and Employment Article (LE). 1 Four months after Claimant’s death, Dr. Shah, in a letter to counsel for Mrs. Ralph, expressed the following opinion: ³⁰⁹ “[Claimant], who sustained injury to his lumbar spine and developed disabling lower back pain, indeed has a permanent partial disability of his lumbar spine at 50%, and total body disability at 40%. His disability to return back to his previous job is 100%. This disability is given according to AMA Guidelines of the Third Edition for Evaluation of Permanent Impairment.” Hearing before the Commission was held in March 1993. The Commission found that Claimant “had not reached maximum medical improvement at the time of his death from unrelated causes” with the result “that the issue of nature and extent of disability is not applicable----” “Maximum medical improvement” is the stage at which workers’ compensation claimants have “reached a point of stability in their disease and they have benefited maximally from their interventional medical care.” Alexander v. Montgomery County, 87 Md. App. 275, 279 , 589 A.2d 563, 565 (1991).

Following an appeal to the Circuit Court for Montgomery County, the parties respectively moved for summary judgment. The court granted Sears’s motion. Mrs. Ralph moved to alter the judgment, and, in support thereof, submitted an undated affidavit from Dr. Shah. In that affidavit, Dr. Shah referred to his June 21 letter to Sears that mentioned the “possibility” of a lighter job schedule.

Dr. Shah explained that that statement referred to a mere possibility and did not express a medical opinion. He said that, as of June 21, 1991, he “did not feel [that Claimant] would ever work again,” and that Claimant had “reached maximum medical improvement on June 10, 1991....” His opinion, to a reasonable degree of medical probability, was “that from June 10, 1991 throughout the rest of [Claimant’s] life ... he was unable to return to any gainful employment because of his work related injuries and was permanently totally disabled from working.” The circuit court denied the motion to alter judgment. In granting summary judgment to Sears the court ruled “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 ³¹⁰ made as to industrial loss of use____” The court indicated that the issue was “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____” It is clear that the circuit court did not predicate the grant of summary judgment on the absence of evidence to support Claimant’s having reached maximum medical improvement. Consequently, we do not consider Sears’s arguments directed to that issue.

See Blades v. Woods, 338 Md. 475 , 659 A.2d 872 (1995). Whether the circuit court predicated summary judgment on the absence of a medical rating prior to Claimant’s death, or on the inadequacy of the total medical history to support a posthumous loss of industrial use determination, is not as clear. Sears’s petition for certiorari embraces both aspects of the summary judgment grant. The questions which this Court undertook to review are: “1.

May posthumous permanent impairment ratings be used as evidence in workers’ compensation cases? “2. Did the Court of Special Appeals err in reversing the Circuit Court decision that Ms. Ralph could not present the necessary evidence to support a finding of industrial loss of use of the body?” Sears and an amicus, Harford Mutual Insurance Co., submit that Maryland law requires a bright line rule of inadmissibility for posthumous medical ratings in “other cases.” Although there is no express statutory prohibition of posthumous ratings, the submission is that that result is necessarily implied from a combination of statutory provisions. The argument is limited to permanent disability, as distinguished from temporary disability, and to compensation awarded under the “other cases” section, LE § 9-627(k), as distinguished from compensation for loss of use of members, or parts of members, of the body that are scheduled in LE § 9-627(a) through (j). One of the components of Sears’s argument is LE § 9-721.

It reads: ³¹¹ “Evaluation of permanent impairments. “(a) In accordance with regulations.—A physician shall evaluate a permanent impairment and report the evaluation to the Commission in accordance with the regulations of the Commission. “(b) Contents of evaluation.—A medical evaluation of a permanent impairment shall include information about: “(1) atrophy; “(2) pain; “(3) weakness; and “(4) loss of endurance, function, and range of motion.” Regulations of the Commission complement the statute. Maryland Regs.Code (COMAR) Title 14, § 09.04.02 provides general guidelines for evaluation of permanent impairment. Incorporated by reference into that regulation are the provisions of American Medical Association, Guides to the Evaluation of Permanent Impairment (3d ed. 1988) (Guides). CO-MAR § 14.09.04.01.

Under the regulation a party may submit a written evaluation of permanent impairment prepared by a physician. COMAR § 14.09.04.02A. The physician preparing an evaluation is required to conform to the format of the Guides and to use numerical ratings set forth in the Guides. Reg. § .02B(1) and (2).

Under Reg. § .02B(4) the items required by LE § 9-721 are to be included, but under Reg. § .02C the physician “may include numerical ratings not set forth in the” Guides for those items. “If the physician does so, the physician shall include in the evaluation the detailed findings that support those numerical ratings.” Id. In the instant case, Mrs. Ralph contends that the Claimant was permanently totally disabled. We have said that “[pjermanent total disability envisions a condition in which a claimant is incapable of doing work of any kind, and not just the kind that the claimant was accustomed and qualified to do at the time of the accident. While it does not mean that the claimant must be utterly and abjectly helpless, it does mean that he or she is able to perform services so limited in ³¹² quality, dependability, or quantity, that a reasonably stable market for them does not exist.” Baltimore v. Cassidy, 338 Md. 88, 98 , 656 A.2d 757, 762 (1995) (citations omitted).

Where, as here, the alleged injury is to the lumbar spine, an unscheduled injury, the Commission must apply LE § 9-627(k) in order to determine the percentage of permanent disability. In relevant part that subsection provides: “(1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee’s body was impaired as a result of the accidental personal injury or occupational disease. “(2) In making a determination under paragraph (1) of this subsection, the Commission shall consider factors including: “(i) the nature of the physical disability; and “(ii) the age, experience, occupation, and training of the disabled covered employee when the accidental personal injury or occupational disease occurred.” These factors apply to a determination of permanent total disability as well. Giant Food, Inc. v. Coffey, 52 Md.App. 572, 578 , 451 A.2d 151, 154-55 (1982), cert. denied, 295 Md. 283 (1983). Sears’s principal contention seems to be that the permanent impairment evaluation that is required by LE §§ 9— 721 and 9-627(k) cannot be furnished by a medical witness to the Commission where the medical witness has not gone on record in some fashion with