January v. Zielenski

• Decision Date: 01 July 1975
• Docket Number: No. 1030,1030
• Citation: 340 A.2d 381,27 Md.App. 390
• Parties: R. H. and E. M. JANUARY, t/a Jimmy's Cab, et al. v. Gladys ZIELENSKI.
• Court: Court of Special Appeals of Maryland

Page 390

27 Md.App. 390

340 A.2d 381

R. H. and E. M. JANUARY, t/a Jimmy's Cab, et al. v. Gladys ZIELENSKI.

No. 1030.

Court of Special Appeals of Maryland.

July 1, 1975.

Joseph B. Harlan, Baltimore, with whom was Matthew Swerdloff, Baltimore, on the brief, for appellants.

Leo A. Hughes, Jr., Baltimore, with whom was Robert W. Fox, Baltimore, on the brief, for appellee.

Argued before MOYLAN, MENCHINE and LOWE, JJ.

LOWE, Judge.

Two weeks after a seemingly minor foot injury, Gladys Zielenski's leg ¹ had to be amputated below the knee. The acceleration of a gangrene infection was concededly due to Mrs. Zielenski's diabetic condition. However, it was the initial cause of the loss which gave rise to this claim. Originally denied by the Workmen's Compensation Commission, Mrs. Zielenski found success upon appeal before a jury of the Circuit Court for Baltimore County.

Appellants, R. H. and E. M. January, trading as Jimmy's Cab, had employed Mrs. Zielenski, (appellee) as a cab driver. Having already worked three or four hours that day, she repaired to a cab stand, designated as such by Baltimore County, which had been set aside for cabs to await calls rather than cruising for a fare on already congested streets. After talking with another driver, a Mr. Kruger, she That night the foot swelled. The following day she went to the hospital and was prescribed treatment and medication but the foot became progressively worse until its ultimate amputation gave rise to the claim for benefits under Md.Code, Art. 101, the Workmen's Compensation Act. Appealing from the jury verdict favorable to Mrs. Zielenski, the employer asserts three grounds of error committed at the de novo hearing in the Circuit Court:

approached her can and in doing so stepped on a sharp stone which caused her to cry out. Mr. Kruger helped her remove her slipper (worn because of an ingrown toe nail) and he noticed a red mark on the ball of her foot.

1. permitting a doctor to testify to a causal connection between the incident injuring her foot at the cab stand and the amputation;

2. the failure to grant a directed verdict; and

3. error in denying a requested instruction.

TESTIMONY OF CAUSAL CONNECTION

Appellants' complaint is that following the testimony of the treating physician and after several aborted attempts, the doctor was permitted to answer the question:

'Q (BY MR. HUGHES) All right, Doctor, taking into consideration your own background, training, and qualifications, your observations of this party on the day you first saw her, your examination and findings, and also the history taken as reported to by the hospital or added to by the hospital records, you have been shown, have you an opinion as to the probable cause of this flare-up, infection and eventual amputation of the leg?'

by replying:

'A It is the direct injury of stepping on the stone was the precipitating factor in the development of her infected foot.'

The error ascribed asserts the premise that 'expert Appellants found their contention on Sun Cab Co. v. Carter, 14 Md.App. 395, 287 A.2d 73, a case arising from a tort action rather than a workmen's compensation claim. A through reading, however, seems rather to aid the cause of appellee than appellants;

witnesses must base their opinion on reasonable probability or reasonable certainty . . .' and that because the doctor was not asked 'if his opinion was based upon a reasonable degree or probability of medical certainty' error was committed.

'As pointed out in Hughes v. Carter, 236 Md. 484, 486, 204 A.2d 566, citing Charlton Bros. v. Garretson, 188 Md. 85, 94, 51 A.2d 642, although the law requires proof of probable, not merely possible facts, including causal relations, '* * * sequence of events, plus proof of possible causal relations, may amount to proof of probable causal relations, in the absence of evidence of any other equally probable cause. " (Emphasis added). Id. at 408, 287 A.2d at 80.

More appropriately we had previously espoused the causal relation doctrine in a workmen's compensation case, Yellow Cab Co. v. Bisasky, 11 Md.App. 491, 504-505, 275 A.2d 193, 201:

'In workmen's compensation cases, proximate cause means that the result could have been caused by the accident and no other efficient cause intervened between the accident and the injury. Baughman Contracting Co. v. Mellott, 216 Md. 278, 139 A.2d 852; Reeves Motor Co. v. Reeves, 204 Md. 576, 105 A.2d 236. Of course, such possibility must amount to more than a guess, and the relation of the accident to the condition complained of, in point of time and circumstance, must be not merely fanciful. Moller Motor Car Co. v. Unger, 166 Md. 198, 170 A. 777; Baber v. Knipp & Sons, 164 Md. 55, 163 A. 862. But a medical expert is not barred from expressing an opinion as to the cause of an injury merely because he is not willing to state it with absolute certainty; his opinion is admissible 'as to the cause which produced, or probably produced, or The admission of the opinion was not error.

might have produced, a certain physical condition.' Bethlehem-Sparrows Point Shipyard v. Scherpenisse, 187 Md. 375, 380, 50 A.2d 256, 259. See also Langenfelder v. Thompson, 179 Md. 502, 507, 20 A.2d 491, 493, wherein the court said: 'The opinion of an expert as to the probability, or even the possibility, of the cause of a certain condition may frequently be of aid to the jury; for when the facts tend to show that an accident was the cause of the conditions, the assurance of an expert that the causal connection is scientifically possible may be helpful in determining what are reasonable inferences to be drawn from the facts.''

DIRECTED VERDICT

A peripheral thrust of appellants' argument is that since appellee 'was not operating her cab nor was she on any business of her employer . . . (she) was not in the course of her employment.' That statement reflects neither the facts nor the law. She was at an area officially designated for awaiting calls, and thus was about her employer's business. Even if she were resting or relaxing on a break, those intervals would certainly be considered incidental to employment. Spencer v. Chesapeake Paperboard Co., 186 Md. 522, 527, 47 A.2d 385; Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 326 A.2d 186, aff'd Md., 338 A.2d 71 (1975). See Riesinger-Siehler Co. v. Perry, 165 Md. 191, 167 A. 51. Mrs. Zielenski's testimony clearly indicated that her purpose at the cab stand was to await a fare, either a 'walk-up or a call on the radio.' Appellants would have us hold that because there was no direct evidence that she 'received a call to return to work with her cab' when she stepped on the stone she was not in the course of her employment. To do so we would necessarily have to rule that any clerk...