Greenwell v. Montgomery Cnty.
| Decision Date | 18 June 2015 |
| Docket Number | No. 1724,1724 |
| Parties | MICHAEL A. GREENWELL v. MONTGOMERY COUNTY, MD |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Wright, Leahy, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.
Opinion by Wright, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
This appeal arises from a claim before the Workers' Compensation Commission ("Commission"). Appellant, Michael Greenwell, was employed by appellee, Montgomery County, when he suffered a lower back injury on August 28, 2006. On August 10, 2011, Greenwell filed "Issues" with the Commission requesting "approval of surgery as recommended by Dr. Magee and temporary total disability from the date of the surgery and continuing." Following 13 continuances filed by Greenwell, the Commission heard the matter on February 19, 2014. Thereafter, the Commission found that Greenwell "was temporarily totally disabled from January 23, 2014 to present and continuing," and ordered appellee to pay compensation "at the rate of $403.00, payable weekly, beginning January 23, 2014 to present and continuing for as long as [Greenwell] remains temporarily totally disabled as a result of this claim."
On March 4, 2014, appellee filed a petition for judicial review in the Circuit Court for Montgomery County. On August, 2014, the parties filed cross-motions for summary judgment. Following a hearing on September 17, 2014, the circuit court granted appellee's motion, thereby reversing the Commission's award. In its written order entered on September 19, 2014, the court ruled that Greenwell's "claim for temporary total disability benefits is barred by § 9-736 of the Labor and Employment Article."
Greenwell timely appealed, asking us to determine:
Whether the Circuit Court committed legal error by finding that Mr. Greenwell's claim was barred by limitations and holding that he did not have the requisite basis in fact when issues were filed for disability benefits, despite the fact that his doctor had referred him out for "consideration of surgery"?
For the reasons that follow, we vacate the circuit court's grant of summary judgment in appellee's favor and remand the case to that court for further proceedings not inconsistent with this opinion.
Greenwell injured his back within the scope of employment on August 28, 2006, and filed a claim with the Commission on October 27, 2006. It is undisputed that appellee issued full salary to Greenwell in lieu of temporary total disability payments from August 30, 2006, to October 19, 2006.
On November 14, 2006, Greenwell began seeing physicians at Magee and Michaels, P.A. Initially, Dr. Stephen Michaels prescribed Naprosyn and Vicodin, and performed epidural injections on Greenwell's back. In 2007, Dr. Michaels did not consider back surgery because he recommended that Greenwell first lose weight by undergoing a gastric bypass surgery.
On March 25, 2011, Dr. Magee noted that Greenwell complained of "persistent pain in his lower back with pain extending into both legs." As a result, Dr. Magee sent Greenwell for an MRI scan of the lumbosacral spine and recommended that he be evaluated by Dr. Alexandros Powers, a neurosurgeon, thereafter.
Dr. Powers examined Greenwell on June 2, 2011, at which time he noted that "even with further diagnostic evaluations it may be determined that the pain generator is not receptive to surgical interventions." Specifically, Dr. Powers stated that "even if a discrete pain generator is identified it would be of benefit to have further weight reduction prior to entertaining any sort of surgical intervention."
On August 5, 2011, Dr. Magee noted that Greenwell's MRI "show[ed] evidence of herniated discs." At that time, Dr. Magee recommended as follows:
The patient will be referred to Dr. Quigl[e]y at Shady Grove Adventist Hospital for consideration of lumbar decompression with possible fusion. He may continue to work if he is able to do so. I will be happy to see him as needed in the future.
Five days later, Greenwell filed "Issues" with the Commission requesting "approval of surgery as recommended by Dr. Magee and temporary total disability from the date of the surgery and continuing."
On September 22, 2011, the Commission sent Greenwell a notice of hearing scheduled for October 28, 2011. On October 19, 2011, Greenwell requested a continuance, stating that he had "just received [appellee's] IME report and . . . need[ed] to obtain a rebuttal report." Greenwell also stated that he "needs further consultation with Dr. Powers regarding surgery." The Commission granted Greenwell's request on October 21, 2011.
On October 24, 2011, Dr. Zohair Alam, who had joined Dr. Magee's and Dr. Michaels's practice, informed Greenwell's counsel as follows:
Mr. Greenwell has been under the care of Dr. Magee for an injury sustained on 08/26/06. Dr. Magee is no longer affiliated with our practice. I have reviewed the chart on his behalf. I do not have a note from Dr. Quigley delineating the proposed surgical procedure for Mr. Greenwell but based on reading the notes it appears that the proposed surgery recommended is a lumbar decompression and fusion. Per the chart, since there has been no history of improvement with other modalities of treatment, I do feel surgery is recommended at this time for his lower back and that the surgery is causely [sic] related to the work accident from 08/28/06. Please feel free to contact me if you have any further questions.
Subsequently, Greenwell chose to consult with Dr. Powers instead of Dr. Quigley.
On October 27, 2011, Dr. Powers acknowledged the "recommendation from Dr. Magee indicating that Mr. Greenwell should consider surgical consultation for lumbar decompression and possible fusion." Dr. Powers noted, however, that he would not "be able to comment on whether there is a need for more extensive surgical techniques such as instrumented fusion" until "[a]fter confirmation of the pain generator." By mid-November, 2011, Greenwell "was evaluated for venous thrombosis, which has required anti-coagulation." As a result, Dr. Powers recommended "[c]ompletion of anti-coagulation therapy" and "[i]f a discrete pain generator can be identified . . . and there is failure to show adequate response with conservative modalities, then surgical intervention might need to be considered."
On November 14, 2011, the Commission sent Greenwell a new notice of hearing scheduled for January 17, 2012. On December 27, 2011, Greenwell requested another continuance, stating that he That request was granted on January 3, 2012.
On January 20, 2012, the Commission sent Greenwell a new notice of hearing scheduled for March 7, 2012. Greenwell requested a third continuance on February 8, 2012, citing the same reasons as his previous request. Greenwell added, however, that he "cannot withdraw issues due to the statute of limitations." The Commission granted Greenwell's request on February 13, 2012.
On February 28, 2012, the Commission sent Greenwell a new notice of hearing scheduled for April 18, 2012. On March 20, 2012, Greenwell filed a fourth request forcontinuance, stating that he was "recently cleared to receive the diagnostic blocks which will determine what type of surgery is needed." Greenwell also stated that he needed "additional time to get blocks and follow up with Dr. Powers," and therefore, the case was "not ready to go forward on the issue of approval of surgery and [Greenwell] cannot withdraw issues due to the statute of limitations." The Commission granted Greenwell's request on April 3, 2012.
On April 27, 2012, the Commission sent Greenwell a new notice of hearing scheduled for June 18, 2012. On May 29, 2012, Greenwell requested a fifth continuance, citing the same reasons as the previous request and noting that counsel would be unavailable. That request was granted on May 31, 2012.
By mid-July, 2012, Dr. Powers could not "identify a discrete pain generator let alone discuss whether there is any role for surgical therapy." As a result, Dr. Powers sent Greenwell for "further testing consisting of electrodiagnostic studies." Dr. Powers also explained - and Greenwell understood - that "it is possible that the work-up will ultimately reveal that the condition is not neurosurgical."
On July 13, 2012, the Commission sent Greenwell a new notice of hearing scheduled for September 4, 2012. On August 15, 2012, Greenwell filed a sixth request for continuance, stating that he The Commission granted that request on August 16, 2012.
On October 16, 2012, the Commission sent Greenwell a new notice of hearing scheduled for December 3, 2012. On November 6, 2012, Greenwell requested a seventh continuance, stating that he "has not been able to get approval to complete diagnostic testing needed before proceeding with surgery and the statute of limitations is running." On November 8, 2012, the Commission granted Greenwell's request.
Thereafter, the Commission sent another notice for a hearing set for February 12, 2013. On January 16, 2013, Greenwell filed an eighth request for continuance, citing the same reasons as his previous request. The Commission granted that request on January 18, 2013.
On February 11, 2013, the Commission sent Greenwell another notice for a hearing scheduled for April 1, 2013. On March 27, 2013, Greenwell requested his ninth continuance, citing the same reasons as his preceding two...
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