Propane v. Corder

• Decision Date: 14 April 2022
• Docket Number: 2397-2019
• Parties: ALLIED PROPANE, ET AL. v. JAMES H. CORDER
• Court: Court of Special Appeals of Maryland

ALLIED PROPANE, ET AL. v. JAMES H. CORDER

No. 2397-2019

Court of Special Appeals of Maryland

April 14, 2022

Circuit Court for Cecil County Case No. C-O7-CV-18-000162

Fader C. J., Kehoe, Friedman, JJ.

OPINION ^[*]

Kehoe J Allied Propane and The Insurance Company of the State of Pennsylvania (collectively "Allied") appeal from a judgment of the Circuit Court of Cecil County, the Honorable William W. Davis, Jr., presiding, in favor of James H. Corder. Allied presents two issues on appeal which we have reworded:

1.Did the trial court abuse its discretion when it denied Allied's motion in limine to exclude the testimony of Mr. Corder's treating physician?

2.Did the trial court abuse its discretion in overruling Allied's objection to the admission of the treating physician's testimony into evidence?^[1]

We will affirm the judgment of the circuit court.

BACKGROUND

At the times relevant to this appeal, Mr. Corder worked as a serviceman/driver for Allied Propane. In 2013, he sought treatment for recurring pain in his left shoulder. His doctor diagnosed the pain as caused by arthritis and successfully treated it. In February 2015, Mr. Corder injured the same shoulder twice in separate work-related incidents. Thereafter, he experienced a great deal of pain and limited mobility in his shoulder. In 2017, Mr. Corder underwent shoulder replacement surgery that alleviated the pain and restored mobility. There is no dispute that the shoulder replacement procedure was medically necessary. The issue was-and is-whether the surgery corrected a pre-existing condition that was aggravated by the 2015 workplace injuries (Mr. Corder's position) or whether the surgery was necessary to correct pain and mobility problems caused by the arthritis and was therefore unrelated to the work-related injuries (Allied's position).

After a hearing, the Workers' Compensation Commission issued two orders on March 18, 2018. First, the Commission ruled that Mr. Corder had reached maximum medical improvement regarding the 2015 injuries on May 1, 2015. Second, the Commission found that the 2017 shoulder replacement surgery was "not causally related to this claim."

Mr. Corder filed a petition for judicial review of the Commission's orders. Pursuant to Md. Code, Lab. & Empl. § 9-745(d), he opted for what is sometimes termed an "essential de novo review." See Board of Education for Montgomery County v. Spradlin, 161 Md.App. 155, 167 (2005).^[2] The jury returned a verdict in Mr. Corder's favor.

Because the parties' appellate contentions involve the validity of conclusions made by Mr. Corder's treating physician based upon his relevant medical history, we will summarize the evidence presented to the jury regarding that history:

On January 28, 2013, Mr. Corder saw Michael Axe, M.D. ("Dr. Axe, Sr."^[3]) at First State Orthopaedics because he was experiencing chronic pain in his left shoulder. Based on an x-ray, Mr. Corder's symptoms, and his medical history, Dr. Axe concluded that his patient had glenohumeral arthritis in his left shoulder.^[4] To alleviate the pain, Dr. Axe, Sr. gave Mr. Corder a lidocaine injection and recommended that he participate in physical therapy. Dr. Axe, Sr. told Mr. Corder that he could anticipate "a good 50% improvement" through physical therapy. Dr. Axe, Sr. did not discuss with Mr. Corder the possibility that he might need shoulder replacement surgery.

On March 11, 2013, Mr. Corder returned for a follow-up appointment. Dr. Axe, Sr.'s notes show that Mr. Corder was "making progress" in physical therapy, the injection was helpful, he maintained "full duty status at work," and he no longer needed to take medications at night because of shoulder pain. Dr. Axe, Sr. advised Mr. Corder that, if he took a "step backward," they could consider injecting his shoulder with hyaluronic acid.^[5]The notes do not indicate that physician and patient discussed the possibility of shoulder replacement surgery. Mr. Corder had no further contact with the doctors at First State Orthopaedics until the events that we will now relate.

On February 7, 2015, Mr. Corder was pulling wrenches^[6] at an Allied jobsite. He felt a tearing sensation in his left shoulder. On February 26, 2015, he slipped on ice at the same jobsite and re-injured the same shoulder.

On April 13, 2015, Mr. Corder returned to First State Orthopaedics and was evaluated by Leo Raisis, M.D. Mr. Corder described the two work-related accidents to Dr. Raisis. He told Dr. Raisis that, up until these incidents, he "[had been] having no problem with [his] left shoulder." Dr. Raisis ordered an x-ray and an MRI of Mr. Corder's shoulder because he was concerned that Mr. Corder might have torn his rotator cuff. He also gave Mr. Corder a cortisone injection and scheduled him for a follow-up appointment.

On May 1, 2015, Mr. Corder returned to see Dr. Raisis and told him that the injection had not helped much. The MRI showed a small rotator cuff tear. The radiologist told Dr. Raisis that the "primary problem" was Mr. Corder's glenohumeral osteoarthritis. Dr. Raisis noted that Mr. Corder's shoulder had been doing well before the accidents at work and that the February 7th injury "aggravated the underlying osteoarthritis of the left shoulder." Dr. Raisis told Mr. Corder that "[i]n the future, if symptoms warrant, he may need shoulder replacement surgery."

On November 1, 2016, Mr. Corder returned to First State Orthopaedics, but this time he saw Jeremie Axe, M.D. ("Dr. Axe"), Dr. Axe, Sr.'s son. Mr. Corder told Dr. Axe that since he was injured at work, his shoulder pain had "occur[ed] occasionally," and that "[t]he problem was worse." Mr. Corder characterized his level of pain as "moderate [to] severe" and "piercing," and told Dr. Axe that he was experiencing "night pain and numbness." Dr. Axe determined that Mr. Corder's subjective shoulder value was 25%, that he was "in pain at all times," and that this "was a work-related injury from slipping and falling with posttraumatic arthrosis in February 2015." Dr. Axe ordered another MRI and a CT scan of Mr. Corder's left shoulder to evaluate whether Mr. Corder was a candidate for a shoulder replacement.

Mr. Corder had the MRI and the CT scan. On November 16, 2016, Mr. Corder returned to see Dr. Axe to discuss the results. The images showed a small rotator cuff tear. Based on his previous evaluations of Mr. Corder, as well as the MRI and CT scan results, Dr. Axe recommended shoulder replacement surgery. Mr. Corder agreed.

On January 5, 2017, Dr. Axe performed the surgery with no complications. Dr. Axe's post-surgical notes include the following:

INDICATIONS FOR PROCEDURE: This is a 59-year-old male who on 02/07/2015 was pulling wrenches at Allied Propane. He felt a tear in his shoulder and re-injured it again on 02/27/2015 after slipping on ice. MRI of his shoulder on 04/18/2015 showed the above findings. We repeated his MRI and it showed significant glenohumeral arthrosis which was likely causative from his slip and fall. MRI confirmed he had an intact rotator cuff. . . .

On November 22, 2017, Mr. Corder saw Dr. Axe for a post-surgical evaluation, and reported he had returned to working regular duties and was doing well.

At some point thereafter, Mr. Corder filed issues with the Workers' Compensation Commission which resulted in the Commission's orders of March 18, 2018. Mr. Corder then filed a petition for judicial review. As part of pre-trial discovery, counsel conducted de bene esse depositions of Dr. Axe and of David L. Drake, M.D., an orthopedic surgeon who conducted an independent medical evaluation of Mr. Corder for Allied. Relevant to the issues raised in this appeal, Dr. Axe's testimony can be summarized as follows:

Dr. Axe testified that he graduated from the Jefferson Medical College, served an internship and a residency at Tufts Medical Center, and then participated in two post-residency fellowships, the first at the American Sports Medicine Institute in Birmingham, Alabama, and the second at Harvard Medical School. He is certified by the American Academy of Orthopaedic Surgeons. He also testified that he was the "shoulder specialist" for First State Orthopaedics and that 65% of the more than 700 cases he handles each year were "shoulder related."

Dr. Axe noted that, starting in 2013, Mr. Corder had been treated by Dr. Axe, Sr. and had experienced a good result from the injection given to him at that time. Dr. Axe stated that it was "significant" that, before the 2015 work-related injuries, Mr. Corder "did not have any significant shoulder pain and was doing well[.]" He also testified that the

most important part[] [of Mr. Corder's medical history] is how [he] was . . . doing before, how he is currently doing, and what's the progression after. Unfortunately, he . . . hurt his shoulder lifting on the 7th of February and then fell and hurt his shoulder more so possibly on the 26th of February of the same year and then had significant pain.

Dr. Axe reiterated that, after the 2015 work-related accidents, "unfortunately, [Mr. Corder] was not doing well" and that, after the accident, Mr. Corder was experiencing "pretty decent pain." Dr. Axe noted that Mr. Corder described his shoulder as functioning at 25% of normal, which Dr. Axe characterized as "very poor."

At the end of Dr. Axe's direct examination, Mr. Corder's counsel and Dr. Axe had the following exchange:

Q. Now, Doctor, do you have an opinion to a reasonable degree of medical probability as to whether or not the January 2017 shoulder replacement was causally related to the work injury of February 7th, 2017?

A. I do.

Q. And what is that opinion?

A. That they were related.

Q. It was causally related?

A. Causally related, yes.

Q. And same question as to

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