Kelly v. BALTIMORE CTY.

• Decision Date: 31 January 2005
• Docket Number: No. 2595,2595
• Citation: 867 A.2d 355,161 Md. App. 128
• Parties: William A. KELLY, III v. BALTIMORE COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

867 A.2d 355

161 Md. App. 128

William A. KELLY, III v. BALTIMORE COUNTY, Maryland.

No. 2595, September Term, 2003.

Court of Special Appeals of Maryland.

January 31, 2005.

Victor D. Sobotka (Schlachman, Belsky & Weiner, P.A., on brief), Towson, for appellant.

William J. Bower, III (Jay L. Liner, Cty. Atty., on brief), for appellee.

Panel EYLER, DEBORAH S., BARBERA and MEREDITH, JJ.

MEREDITH, J.

William A. Kelly, III, appeals from a judgment of the Circuit Court for Baltimore County that granted summary judgment in favor of his employer, Baltimore County ("the County"), and reversed a decision by the Maryland Workers' Compensation Commission ("the Commission"). Kelly, a Baltimore County police officer, filed a claim with the Commission after being involved in an accident while operating his police cruiser, which was hit by a drunk driver. Kelly claimed he underwent surgery on his lower back as a direct consequence of that accident, which he claimed aggravated a prior back injury. The County opposed Kelly's claim for benefits, alleging that Kelly's surgery stemmed solely from the pre-existing back injury, and not from the employment-related accident. The Commission ruled in Kelly's favor.

The County challenged the decision of the Commission by filing a petition for de novo judicial review in the Circuit Court for Baltimore County. In the circuit court, the County filed a motion for summary judgment. In its motion, the County claimed the Commission's decision was incorrect as a matter of law because Kelly failed to submit any medical expert testimony specifically attributing the cause of his back injury to the employment-related accident. The County argued that Kelly was required to produce expert testimony as to causation because the issue involves a complex medical question. The circuit court granted the County's motion and entered summary judgment in its favor. Kelly filed an appeal to this Court. Because we conclude that the case should not have been disposed of by way of summary judgment, we shall reverse the decision of the circuit court.

QUESTION PRESENTED

The question before us is whether a circuit court, in a de novo appeal initiated by the employer from a ruling by the Commission in favor of the employee, can, on summary judgment, reverse the ruling of the Commission and enter judgment in favor of the employer if the employee does not produce expert medical testimony as to causation. Under the circumstances of this case, we hold that it was error for the circuit court to overturn the ruling of the Commission on summary judgment.

BACKGROUND

On October 24, 2002, Kelly was on routine patrol, driving a marked police car, when he was struck by an oncoming vehicle. The driver of the other vehicle, who was impaired by alcohol, turned the wrong way down a one-way street and crashed into the driver's side of Kelly's car. According to Kelly, as a result of the accident, Kelly re-injured his back, which had been problematic for some time. He obtained medical care on October 25, 2002, at which time he was diagnosed with a lumbar sprain and placed on modified activity with some restrictions.

On October 28, 2002, the County filed a first report of injury, informing the Commission that Kelly's accident caused him to suffer an injury to his lower back (lumbar and sacral). Subsequently, on January 20, 2003, Kelly filed his own employee's claim with the Commission, and he also claimed his lower back was injured when his vehicle was struck. On January 27, 2003, prior to the Commission awarding Kelly any compensation for the October 2002 employment-related injury, Kelly underwent surgery for the decompression of a disc in his back.

The Commission issued Kelly an award on February 25, 2003, finding that he had sustained an accidental injury arising out of the course of his employment, and that he was temporarily totally disabled as a result of his injuries. The County was ordered to provide Kelly with weekly compensation dating back to November 3, 2002, and to pay for his medical treatment and other necessary medical services as provided by Md.Code (1957, 2002 Repl.Vol.), Labor and Employment Article ("L.E."), § 9-660 through § 9-664, and § 9-689.

On April 14, 2003, the County filed issues to be heard by the Commission, questioning whether Kelly's surgery was causally related to his accident of October 24, 2002. A hearing was held by the Commission on July 31, 2003.

At the Commission hearing, the County argued that the back injury that led to Kelly's surgery was actually a non-work-related injury suffered in December 2001 while playing basketball. Evidence was presented in the form of medical reports, which indicated Kelly had been receiving treatment since the December 2001 incident for a disc herniation in the same area of his lower back where his 2003 surgery had been performed.

The County submitted a letter report from Dr. Stephen R. Matz, a physician hired by the County to conduct an "independent medical evaluation" of Kelly. The County argued that it was Dr. Matz's opinion that Kelly's back surgery was not causally connected to the employment-related motor vehicle accident, but instead resulted from his 2001 basketball injury. Additionally, the County submitted two letters concerning the surgery from Kelly's treating physician, Dr. Ira Fedder, which the County argued did not expressly connect the surgery with the injury Kelly suffered from the motor vehicle accident. The County argued that Dr. Fedder's omission of an opinion as to causation was significant.

The documentary evidence presented by the County reflected that Dr. Fedder had discussed back surgery with Kelly in September 2002 during the course of treatment for the December 2001 basketball injury. The documents further reflected that Dr. Fedder suggested that, before resorting to surgery, Kelly should first undergo a series of injections, known as selective nerve root block, to see if that procedure would eliminate his back pain.

Dr. Fedder referred Kelly to Dr. P. Bobbie Dey, who gave Kelly nerve root block injections on the following four dates: October 10, 2002, October 17, 2002, October 31, 2002, and November 7, 2002. Kelly testified at the Commission hearing that after the October 17, 2002 injection, he was doing well and was not going to receive the third injection. However, after the motor vehicle accident on October 24, 2002, Kelly's pain returned, and he decided to receive the third and fourth injections.

Dr. Dey's patient reports regarding Kelly were submitted at the Commission hearing. They corroborated that Kelly was experiencing pain when he visited her on October 31, 2002, one week after his involvement in the motor vehicle accident. Her report from that visit stated: "[T]he patient was 100 percent improved. Recently, the patient had a side impact, work-related motor vehicle accident since which time the pain in his legs have returned. I recommend no streak [sic] duties as a police officer for the [next] 6 to 8 months."

Kelly submitted additional medical records at the Commission hearing regarding the 2001 back injury. He admitted that Dr. Fedder had discussed the possibility of surgery with him prior to the motor vehicle accident that occurred on October 24, 2002, but he asserted that his condition had improved substantially in response to the nerve root injections he received, and that he had ruled out surgery until the accident caused the pain to return. Kelly argued that, while the motor vehicle accident was not the original cause of his back pain, the accident aggravated the old injury and caused him to need surgery.

Kelly also testified that he did not miss any time from work as a result of the December 2001 basketball injury, except for two to three days right after the injury occurred. He testified that he had been in incidents involving fights with suspects since he suffered the original injury, but he had never reinjured his back until the motor vehicle accident on October 24, 2002.

The Commission issued a decision in Kelly's favor, finding: "[T]he accidental injury sustained on October 24, 2002 exacerbated [Kelly's] pre-existing condition requiring the need for surgery...." The County was ordered to pay for all of Kelly's medical bills that were related to the January 27, 2003 surgery, and to provide Kelly with compensation for his recovery period following the surgery.

The County sought judicial review of the Commission's decision in the Circuit Court for Baltimore County pursuant to Md. Rule 7-201, and requested a jury trial. The County then filed a motion for summary judgment, requesting that the court summarily reverse the decision of the Commission and enter judgment in its favor. Relying on the record from the proceedings before the Commission, and without any supplemental evidence offered by way of affidavit or deposition testimony, the County argued that the case involves a complex medical question, which requires the claimant to produce medical testimony to connect the need for surgery and treatment to the employment-related accident.

Kelly opposed the County's motion, arguing that there was sufficient medical evidence in the record before the Commission to support his claim and the Commission's finding that the surgery was related to the accident. Kelly further asserted that there was a genuine dispute concerning the material fact of whether the aggravation of his back injury and the surgery were causally connected to the motor vehicle accident. In response to the motion, Kelly offered no supplemental evidence, but instead relied on the evidence in the record from the Commission. Kelly also argued that the Commission's finding of causation was entitled to a presumption that it was correct.

After a hearing, the circuit court, without opinion, granted the County's motion for summary judgment and entered judgment in the County's favor. Kelly noted a timely appeal.

JUDICIAL REVIEW

In S.B....