Phuonglan NGO v. CVS, Inc.

• Decision Date: 25 September 2013
• Docket Number: No. 807,Sept. Term, 2012.,807
• Parties: PHUONGLAN NGO v. CVS, INC., et al.
• Court: Court of Special Appeals of Maryland

214 Md.App. 406

76 A.3d 499

PHUONGLAN NGO

v.CVS, INC., et al.

No. 807, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Sept. 25, 2013.

Benjamin T. Boscolo (ChasenBoscolo Injury Lawyers, on the brief), Greenbelt, MD, for Appellant.

Michael S. Fox (Semmes, Bowen & Semmes, on the brief), Baltimore MD, for Appellee.

Panel: ZARNOCH, GRAEFF and JAMES P. SALMON (Retired, Specially Assigned), JJ.

SALMON, J.

The sole question that we are called upon to decide in this case, as phrased by the appellant, Phuonglan Ngo, is:

Can a claimant who has reached maximum medical improvement receive temporary total disability benefits under the Maryland Workers' Compensation Act?

We shall answer that question in the negative and affirm the judgment of the Circuit Court for Prince George's County.

I.Background

On December 21, 2009, Phuonglan Ngo (hereinafter “claimant”) was 68 years old and working at a CVS store in Hyattsville, Maryland. While in the course of her employment as a pharmacist, claimant fell on some ice that had accumulated on CVS's premises. Claimant suffered an injury to her mid and low back as a result of that fall.

Claimant began receiving temporary total disability payments through CVS's insurer, American International South Insurance Company (hereinafter “American International”), on the day following her fall. She commenced medical treatment shortly after the accident and on April 27, 2010, saw, for the first time, Dr. Joel Falik, a neurosurgeon. Dr. Falik's examination showed that the claimant had a medical condition known as kyphoscoliosis throughout the lumbar and thoracic spine. In layman's terms, this meant she had a pre-existing S-shaped curve to the mid and low back portion of her spine. A MRI scan of the claimant's back revealed that she also had a fracture at the T–12 level. This fracture was due to the subject accident. Fragments from the fracture entered the spinal canal at the site of the curvature of claimant's spine. There was not, however, any compression of the spine.

Dr. Falik believed that claimant might benefit by a kyphoplasty, which is a surgical procedure, to repair the fracture. Dr. Falik referred claimant to Dr. Khaled M. Kebaish, an orthopedic surgeon with offices in Baltimore, Maryland, to further evaluate claimant's medical condition.

On July 7, 2010, claimant met with Dr. Kebaish who discussed with her the advantages and disadvantages of having a kyphoplasty. Claimant, on that date, decided not to have the surgery.

On July 27, 2010, after it received word that claimant had declined to have surgery, American International stopped making temporary total disability payments to claimant. Claimant filed issues with the Maryland Workers' Compensation Commission (“the Commission”), on August 23, 2010 and asked the Commission to:

1) Order vocational rehabilitation.

2) Reinstate temporary total disability payments.

On October 14, 2010, claimant saw Dr. Jerome Gardiner, an orthopedic surgeon. Dr. Gardiner had been retained by American International to perform an independent medical examination of claimant. Dr. Gardiner concluded that as of October 10, 2010, claimant was unable to return to full-time work. In his opinion, however, she was capable of working four hours per day, provided that her job was a sedentary one. In Dr. Gardiner's opinion, claimant had already reached maximum medical improvement due to her job-related injury inasmuch as she had decided not to have surgery.

A hearing was held before the Commission on December 1, 2010. The Commission considered, inter alia, claimant's testimony and the reports of Drs. Gardiner, Falik and Kebaish.

On December 21, 2010, exactly one year after the subject accident, the Commission issued its opinion and order, which read, in material part, as follows:

Hearing was held in the above claim in Beltsville, Maryland on December 1, 2010 on the following issues:

1) Maximum medical improvement.

2) Temporary total disability.

3) Vocational rehabilitation.

The Commission finds that as a result of the accidental injury sustained on December 21, 2009, claimant was paid compensation for temporary total disability from December 22, 2009 to July 26, 2010 inclusive. The Commission finds on the first issue presented that claimant is at maximum medical improvement. The Commission finds on the second issue presented that temporary total disability from July 27, 2010 to present and continuing is denied. The Commission finds on the third issue presented that a 60–day vocational rehabilitation program for job placement is authorized. The Commission further finds that claimant shall be paid compensation for vocational rehabilitation benefits at the temporary total disability rate during the period of vocational rehabilitation.

Claimant filed a petition for judicial review in the Circuit Court for Prince George's County and requested a jury trial. After the employer/insurer filed an answer to the petition, claimant filed a motion for summary judgment, in which she asked the court to “modify” existing workers' compensation law. In her memorandum in support of that motion, claimant stated that she did not dispute Dr. Gardiner's determination that she had presently reached “maximum medical improvement for her injuries....” She also admitted in her memorandum that “decades of Maryland case law” supported the Commission's decision to terminate “temporary total disability benefits solely on the basis ... that [the claimant had reached] maximum medical improvement....” She further admitted that “Maryland appellate decisions have regularly supported the termination of temporary disability benefits upon a finding of maximum medical improvement regardless of whether a claimant continues to suffer from loss of earning capacity.”

Despite the existing case law, claimant contended that she was entitled to summary judgment in her favor because the “Maryland Legislature never intended that a finding of maximum medical improvement mark[s] the end of the temporary total disability” compensation period. Based on her counsel's reading of the intent of the Maryland General Assembly, claimant asked the court to “modify existing law to prevent further impermissible burden-shifting in clear contravention of the traditional role of the Commission or court.” After the employer/insurer responded to the summary judgment motion, the circuit court denied that motion.

Shortly before trial, the employer/insurer filed a motion in limine, in which movants pointed out that in his video-taped deposition, which was to be shown to the jury at trial, claimant's own expert, Dr. Falik, testified that claimant had reached “maximum medical improvement” on January 21, 2011. ¹ Next, relying on some of the same cases that claimant had cited in her memorandum in support of summary judgment, the employer/insurer contended that as a matter of law, temporary total disability benefits must terminate when the claimant reaches maximum medical improvement. Movants asked the court to rule that “temporary total disability benefits should be limited to a closed period of benefits from July 27, 2010 to January 21, 2011 and not an open and continuous period.” The circuit court denied the motion in limine.

Trial was held on July 13, 2012. The video-taped deposition testimony of Dr. Gardiner and Dr. Falik was presented to the jurors. Dr. Gardiner testified that claimant had reached maximum medical improvement on July 7, 2010, which was the date that claimant decided not to have surgery. Dr. Falik testified that claimant reached maximum medical improvement on the date he last saw claimant, which was “in early 2011, in January of 2011.”

Claimant testified that after she declined surgery in July 2010, she continued to see Dr. Falik, who prescribed pain medication therapy up until January of 2011. Claimant also testified that Dr. Gardiner had advised her in the fall of 2010 that she was able to work four hours per day at a job that would allow her to sit down and did not require her to lift over ten pounds. At that point, claimant began looking for jobs of the sort suggested by Dr. Gardiner. According to claimant's testimony, she appliedfor approximately 50 jobs of the type recommended. The jobs she applied for included receptionist, clerk, help desk employee and pharmacy technician. Claimant testified that she believed that she was physically capable of performing the jobs for which she applied. Nevertheless, she received no job offers and was still unemployed.

At the conclusion of the evidentiary phase of the case, the employer/insurer made a motion for judgment based on the same grounds as those set forth earlier in their in limine motion. The motion for judgment was denied.

The jury, after deliberation, filled out a special verdict sheet and found as follows:

1) That the Claimant reached maximum medical improvement as of “January, 2011,”

2) That the Claimant was temporarily and totally disabled from performing any and all work for any period of time after July 27, 2010, solely as a result of the December 21, 2009 accidental injury, and

3) That the Claimant continued to be temporarily and totally disabled from July 27, 2010 “until she finds a job.”

The employer/insurer filed a motion for judgment notwithstanding the verdict (hereinafter “judgment N.O.V.”) or, in the alternative, for a new trial, based on the same arguments they had put forth in their in limine motion. Claimant, in response to the post-trial motions, no longer argued, as she had in her motion for summary judgment, that Maryland case law did not reflect the intent of the Maryland General Assembly. Instead, appellant's counsel argued that Maryland case law supported her position that temporary total disability benefit payments could continue after the worker reached maximum medical improvement, so long as the claimant remained totally disabled.

After a hearing, the trial judge conceded that she should have granted the employer/insurer's m...