Young v. Hartford Accident & Indemnity Co.

RODOWSKY, Judge. This case involves the exclusivity of the workers’ compensation remedy as a defense to a damage suit. Appellant, Phyllis Young (Young), a workers’ compensation claimant, allegedly attempted suicide because she had been examined by a psychiatrist who evaluated her condition at the request ¹⁸⁶ of the employer’s insurer. She sued the insurer in tort for damages on theories of negligence and intentional infliction of emotional distress.

Judgment was for the insurer on demurrer and Young appealed. We issued certiorari on our own motion prior to review by the Court of Special Appeals, 300 Md. 151 , 476 A.2d 720 . We shall affirm as to negligence and reverse as to the intentional infliction of emotional distress. In her two count declaration filed in the Eighth Judicial Circuit on September 2, 1982, Young alleged the following basic, i.e., nonultimate, facts which we set forth chronologically.

April 15, 1978—Young, an employee of House in the Pines Nursing Home, is assaulted at work. 1 The appellee and defendant below, Hartford Accident and Indemnity Company (Hartford), was the workers’ compensation insurer of the employer. Young “sustained physical and emotional trauma as a result of the assault.” (Emphasis added.) May 18, 1978—The Workmen’s Compensation Commission (the Commission) orders the employer and insurer to pay temporary total disability, to provide medical treatment “[Promptly,” and to “[f]ile a statement of compensation paid with the Commission upon ceasing the payments made under” the May 18, 1978, order. 2 June 18, 1978—Young’s temporary total disability terminates, as later determined by the Commission’s order of May 10, 1979. ¹⁸⁷ November 10, 1978—Young’s second period of temporary total disability begins, as later determined by the Commission. November 14, 1978—Young’s attorney requests Hartford to authorize treatment for emotional illness by Dr. Alan Peck under whose care Young had come after initial treatment by two other physicians. Hartford refuses so to authorize despite its never having had Young examined by a psychiatrist nor its having any medical information to indicate lack of a causal connection between the assault and the psychiatric condition.

February 5, 1979—Dr. Michael Potash examines Young at the request of Hartford and advises Hartford that Young “should continue on the psychiatric care.” February 27, 1979—Young’s second period of temporary total disability ends, as later determined by the Commission. April 16, 1979—The Commission holds a hearing which Young had requested in order to have her medical bills paid. Young is still under the care of Dr. Peck. Hartford’s proof shows that Young is in need of medical care.

May 10, 1979—The Commission enters an order which, inter alia, (1) fixes the dates of the first and second periods of temporary total disability; (2) orders the employer and Hartford to “provide medical treatment unto the claimant and reimburse the claimant for prescriptions;” and (3) holds “for further consideration ... whether [Young] sustained a permanent partial disability, if any,” with the case to “be reset only on request....” After May 10, 1979—Young remains under the care of Dr. Peck. Hartford refuses “to pay a portion of his bill although required to do so by order of the Commission.... ” August 17, 1979—Dr. Peck advises Hartford that Young “had attempted to commit suicide and any pressure by [Hartford] for an outside medical evaluation would only put ¹⁸⁸ more tension on her and lead to a collapse.” Hartford nevertheless insists upon another evaluation, to be performed by Dr. John Henderson. “[I]n order to pressure [Young] into submitting to another [psychiatric] examination [Hartford] refused to pay any further temporary, total disability payments, or medical expenses.” September 5, 1979—Dr. Peck advises Hartford that “any pressure by [Hartford] for a second opinion by a psychiatrist of its own choice would throw [Young] over into a psychosis or severe depression and suicide.” September 7, 1979—“[A]s a direct result of [Hartford’s] insistence,” Dr. John Henderson examines Young and advises Hartford that Young is temporarily, totally disabled and that the disability is compensable. Hartford does not thereafter pay Young’s medical bills despite the custom among workers’ compensation insurers to pay medicals that are supported by a report by an examining physician of the insurer’s selection. Sometime during the relevant period—Young speaks by telephone to Hartford’s adjuster who tells Young that she is “crazy, and ‘if it was up to me you would not get a penny.’ ” September 11, 1979—Young attempts suicide.

September 19, 1979—Young is admitted to a psychiatric hospital where she remained under inpatient and outpatient treatment for approximately three months. Young’s pleading is silent as to whether the insurer paid for this care. In count I of her declaration Young alleged that, in light of Hartford’s knowledge of Young’s prior suicide attempts and the warnings by Dr. Peck, Hartford was negligent in insisting upon a medical examination. Further, “as a direct result of [Young’s] being required to undergo the examination by Doctor Henderson, [she] was caused to attempt to commit suicide.... ” Count II contains additional allegations.

There Young charges that Hartford “in an attempt to reduce its monetary exposure by getting [Young] to commit suicide, or in the alternative to drop her claim, entered into the [there ¹⁸⁹ after described] course of action to [effect] that result[.]” She asserts that “the sole purpose of Doctor Henderson’s examination was to harass [her] into abandoning her claim, or into committing suicide.” Hartford’s conduct is said to have been “intended to inflict emotional distress upon [Young] in order to cause her to drop her claim or commit suicide....” This is not a case where a compensation claimant asserts that tort damages are recoverable based on nonpayment or late payment of compensation. Young’s declaration does repeatedly allege that Hartford failed to pay her medical expenses and that the failures violated Commission orders. The Commission’s orders, with respect to medical expenses, simply embody the obligations which are imposed on the employer and which are assumed by the insurer. See Md.Code (1957, 1979 Repl.Vol.), Art. 101, title, “Workmen’s Compensation” (the Act), § 37(a).

The thrust of Young’s allegations about Hartford’s failure to pay medical bills, however, is that Hartford pressured her economically to present herself for a further psychiatric evaluation. As Young’s counsel stated at the original oral argument, her claim “does not arise out of the failure to pay compensation benefits but arises out of the injury she sustained as a result of the insistence of the insurance company that she be examined again.” Hartford’s position that compensation is Young’s exclusive remedy ultimately rests on that portion of § 15 of the Act which reads: Every employer subject to the provisions of this article, shall pay or provide as required herein compensation ... for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment---- The liability prescribed by the last preceding paragraph shall be exclusive____ Young on the other hand argues that the injuries sued upon arise out of an incident which is separate and distinct from ¹⁹⁰ the initial work-related assault so that any medical expenses and disability resulting from the second incident are not covered by the Act. In part I of this opinion we shall consider these contentions with respect to the declaration’s first count, sounding in negligence. Part II of this opinion addresses the intentional infliction of emotional distress allegations of count II.

I A The first question is whether Young’s injuries which are the basis of this tort suit are sufficiently work related to be covered by the Act. The injuries result from self-infliction. Section 15 of the Act, on which Hartford relies, makes compensation payable “except where the injury is occasioned by willful intention of the injured employee to bring about the injury or death of himself____” And see § 45 (“[N]o employee ... shall be entitled to receive any compensation ... on account of any injury ... caused by self-inflicted injury....”). This Court has held that, depending on the circumstances, death benefits under the Act may be paid where the worker has in fact committed suicide.

See Baber v. Knipp & Sons, 164 Md. 55 , 163 A. 862 (1933). In that compensation case we reversed judgment entered on a directed verdict in favor of the employer. To determine whether the worker’s death arose out of and in the course of his employment, we applied a proximate cause test to the relationship between the death and the accidental injury. We said that, with respect to workers’ compensation cases, “ ‘proximate cause’ means that the result could have been caused by the accident, and that there has not intervened, between the accident and the result, any other efficient cause.” Id. at 67 , 163 A. at 867 .

Application of that test to the facts in Baber , including improperly excluded evidence, resulted in a jury question whether the industrial accident caused the decedent’s mental illness which in turn caused ¹⁹¹ the death by suicide. The same rationale was applied in Baltimore & Ohio R.R. Co. v. Brooks, 158 Md. 149 , 148 A. 276 (1930). In that case, however, an erroneous premise of the claimant’s expert’s opinion rendered it incompetent to establish the causal connection between the accidental injury and death by suicide. In any event, the fact that the declaration before us admits that the plaintiff’s injuries are self-inflicted in an attempted suicide does not, in and of itself, mean that Hartford’s exclusivity argument is foreclosed. 3 A suicide attempt is not always an intervening cause which breaks the nexus between the accidental injury and the injury suffered in the suicide attempt.

The issue turns on the facts in a given case. We have also applied a proximate cause test in other factual situations to determine whether, following an initial injury which was clearly compensable, a second injury was also compensable. For example, in Great Atlantic & Pacific Tea Co. v. Hill, 201 Md. 630 , 95 A.2d 84 (1953), we affirmed a finding that a causal connection existed between a work-related leg fracture and a subsequent fracture of the same bone at the same place which occurred more than three years after the work-related injury and which was unassociated with any trauma. Unger & Mahon, Inc. v. Lidston, 177 Md. 265 , 9 A.2d 604 (1939) affirmed a judgment on a jury verdict which had found to be compensable the disability resulting from a broken hip suffered by the plaintiff while climbing the steps to his home.

The plaintiff had previously injured his ankle at work. The hip injury occurred while the plaintiff was returning home after having purchased medicine. There was evidence from which the jury could have found that weakness in the injured ankle caused the plaintiff to fall on the occasion of the second injury. The claimant in Williams Construction Co. v. Garrison, 42 Md.App. 340 , 400 A.2d 22 (1979) suffered ¹⁹² injuries in a forty foot fall from a ladder while working as a tree trimmer.

Five months earlier, when the claimant was working for a different employer, he had fallen from a tractor and suffered a compensable injury. On the compensation claim based on the second injury, summary judgment for the claimant, rendered on the record before the Commission, was affirmed. Factually, the uncontradicted evidence there was that dizziness resulting from the first accident caused the plaintiff to fall from the ladder on the second occasion. Legally, there was no intervening cause despite the employer’s argument that the claimant’s having climbed a ladder when he knew he was subject to dizziness constituted a willful injury.

The same rule obtains where the claimant, as the result of malpractice by a physician engaged to treat the initial work-related injury, suffers an aggravation of the original injury. See Nazario v. Washington Adventist Hospital, Inc., 45 Md.App. 243 , 412 A.2d 1271 (1980), holding that the insurer’s subrogation interest applied to the recovery in a third-party action against health care providers and rejecting the claimant’s contention that the malpractice action was an entirely separate claim from the compensation claim. And see 1 A. Larson, The Law of Workmen’s Compensation § 13.21 (1985) (Larson). The facts in Young’s declaration, now before us, state a causal nexus between the assault at work and the injuries suffered in the suicide attempt with the result that the later injuries arise out of and in the course of Young’s employment.

It is true that Young alleges that her injuries “were caused solely by the negligence of [Hartford].” Assuming that this allegation is one of fact, it conflicts with other allegations reviewed below. Conflicts in allegations are resolved against the pleader. See Read Drug and Chemical Co. v. Colwill Construction Co., 250 Md. 406, 416 , 243 A.2d 548, 555 (1968). Young avers that she was assaulted at work as a result of which she suffered physical and emotional trauma. ¹⁹³ She says she requested Hartford to authorize treatment for emotional illness, that she obtained her own psychiatrist, and that when she submitted the bills rendered by that psychiatrist to Hartford, Hartford failed to pay them although required to do so.

These allegations in effect say that Young’s emotional disability is covered by the Act. Young then alleges that her treating psychiatrist warned Hartford that she might commit suicide if she were again medically evaluated on behalf of the insurer. Finally, Young avers that her attempted suicide was the result of Dr. Henderson’s examination. But, significantly, there is no assertion in count I that Dr. Henderson conducted his examination in other than a medically correct manner.

Rational persons do not ordinarily react to a medically proper psychiatric evaluation by attempting suicide. It necessarily follows that count I describes a suicide attempt brought about by an irrational reaction to the psychiatric examination, and the only emotional infirmity alleged by Young is the one which she says is compensable. Consequently, the allegations set forth an unbroken chain of proximate causation which continues from the emotional trauma suffered in the assault arising out of and in the course of Young’s employment on to and through the attempted suicide. Under Young’s pleading the injuries suffered in the suicide attempt are an aggravation of the work-related injury.

Under the allegations, the entire emotional illness is compensable under the Act. The next question is whether Hartford, which is not the employer, enjoys an exclusivity defense to Young’s negligence claim. B Hartford sees this phase of the case as controlled by Flood v. Merchants Mutual Ins. Co., 230 Md. 373 , 187 A.2d 320 (1963).

We agree. In that case a compensation claimant filed a common law suit against his employer’s insurer alleging that the insurer (1) had been negligent in its selection of physicians to treat the claimant’s injuries in violation of the statutory duty to provide medical care and ¹⁹⁴ (2) was liable under respondeat superior for the negligence of the physicians. Judgment for the insurer, entered on demurrer, was affirmed. We said that, under the Act, the General Assembly “intended the insurance carrier to stand in the position of the employer.” Id. at 377 , 187 A.2d at