Ralph v. Sears Roebuck & Co.

• Decision Date: 01 September 1994
• Docket Number: No. 270,270
• Citation: 649 A.2d 1179,102 Md.App. 387
• Parties: Anne M. RALPH v. SEARS ROEBUCK & COMPANY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 387

102 Md.App. 387

649 A.2d 1179

Anne M. RALPH v. SEARS ROEBUCK & COMPANY, et al.

No. 270, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Dec. 1, 1994.

Bruce M. Bender (Rena W. Heneghan and Van Grack, Axelson, Williamowsky & Jacobs, P.C., on the brief), Rockville, for appellant.

Allan H. Kittleman (Herwig & Humphreys, on the brief), Baltimore, for appellees.

Argued before ALPERT, WENNER and DAVIS, JJ.

ALPERT, Judge.

This appeal arises from a Workers' Compensation claim for permanent partial disability benefits resulting from injuries sustained by Calvin T. Ralph (claimant), the deceased spouse of appellant, Anne M. Ralph. The Workers' Compensation Commission denied permanent partial disability benefits to Mrs. Ralph, finding that claimant had not reached maximum medical improvement prior to his death from non-injury related causes. ¹ This decision was appealed to the Circuit Court for Montgomery County, and a motion for summary judgment was granted for appellees, Sears Roebuck & Co. and Allstate Insurance Co. (employer/insurer), and denied to appellant. This appeal followed. As restated by us for clarity, appellant asks:

Did the trial court err in granting summary judgment when disputes of material fact existed and when granting summary judgment was either based on weighing the credibility of the evidence, or by making an erroneous determination as to substantive Maryland law (i.e., that posthumous permanent disability ratings are not permitted)?

We answer in the affirmative and therefore reverse.

Facts and Proceedings

Calvin T. Ralph (claimant) sustained an injury on February 20, 1991, while working for appellee employer, Sears Roebuck & Co. He had arrived at a customer's home for the purpose of repairing a clothes dryer, and when he proceeded to the backyard in order to inspect the dryer's vent, he slipped and fell on some wet leaves on the homeowner's patio steps. As a result of his fall, claimant sustained a severe back injury, necessitating his visits beginning on March 1, 1991, to Dr. Harikant Shah, an orthopedic physician.

Dr. Shah took x-rays, performed CAT scan studies, and EMG and nerve conduction studies. Claimant complained he was in considerable pain and discomfort, he had difficulty walking, and he was unable to sit or stand for extended periods. Dr. Shah initially prescribed medication and declared him to be "off work at this time, indefinitely...."

Employer's insurer began voluntarily paying claimant temporary total disability benefits. ² Claimant continued to see Dr. Shah for his injury and he initiated a Workers' Compensation claim on April 15, 1991. Several months later, in early June, 1991, Dr. Shah recommended that a lumbar myelogram be performed on claimant in order to confirm the precise nature of his injury. Another physician, Dr. Nathan Moskowitz, concurred in this recommendation after performing a neurosurgical consultation on claimant on June 3, 1991. An independent medical examination was performed by Dr. Herbert Joseph on behalf of employer/insurer on June 4, 1991. Dr. Joseph felt that claimant would be able to return to work within two to four weeks of treatment consisting of mobilization and work hardening, ³ and therefore, employer/insurer refused to authorize the lumbar myelogram. Dr. Shah felt that Mr. Ralph was not a candidate for work hardening due to his inability to tolerate bending, sitting, or standing.

Claimant continued to see Dr. Shah every few weeks. In his notes of June 21, 1991, Dr. Shah indicated that he found claimant "totally disabled for any gainful employment" and prescribed only moist heat, hot showers, and rest at home. Thereafter, Dr. Shah continued to prescribe pain medication and advised claimant to continue heat and hot showers, to perform no lifting, and to do isometric exercises. Claimant remained in severe pain and discomfort. In late June, claimant began having stomach pains and in August, 1991, he was diagnosed with colon cancer. Claimant died of colon cancer on November 9, 1991.

On April 21, 1992, claimant's widow, appellant, pursued his claim for permanent disability benefits, requesting a hearing on the nature and extent of Mr. Ralph's disability. A hearing was conducted on March 30, 1993. The evidence produced at the hearing included Dr. Shah's notations from June 21 about Mr. Ralph's treatment. There was also evidence offered in the form of a note from Dr. Shah to appellee insurer from that same date, in which the doctor concluded, "Whether [Mr. Ralph] be a candidate for a lighter job schedule is always a possibility, but at this time I do not feel that he is ready for that either." In his affidavit, Dr. Shah explained the apparent ambiguity between his notes of June 21, and his letter to insurer:

6. [I]t was my opinion as to a reasonable degree of medical certainty or probability within my field as an orthopedic surgeon that as of June 21, 1991, Mr. Ralph was totally disabled from any gainful employment and could not ever return to gainful employment as a result of his work related injury of February 20, 1991

* * * * * *

8. What I was expressing in said statement [to insurer] was that anything is possible, but by no means did I express an opinion to a reasonable degree of medical certainty that Mr. Ralph would be a candidate for a lighter job schedule sometime in the future. I was simply speculating by stating that anything may be possible, but I did not feel Mr. Ralph would ever work again.

9. That I further believed that Mr. Ralph reached maximum medical improvement on June 10, 1991, after further diagnostic studies were refused by the insurance company.

10. That at no time did Mr. Ralph's condition regarding his ability to return to work change. It is my opinion to a reasonable degree of medical probability that from June 10, 1991 throughout the rest of Mr. Ralph's life that he was unable to return to any gainful employment because of his work related injuries and was permanently totally disabled from working.

Further, in his report dated March 9, 1992, Dr. Shah opined that claimant had a 50 percent permanent partial disability in the lumbar spine, total body disability of 40 percent, and disability to return to his previous job at 100 percent. ⁴ This evaluation of impairment was based on the American Medical Association's guidelines.

Additionally, claimant's internist, Dr. G. Peter Pushkas, in a report also prepared after claimant's death dated October 28, 1992, indicated that his patient had an "obvious inability to move freely because of persistent severe back pain." Dr. Pushkas concluded that it was his "medical opinion that [claimant's] back pain and lower extremity pain/weakness was entirely related to his injury and could not possibly be explained by his intra-abdominal malignancy. Even after the finding of the disease and his surgery, a significant proportion of his problems were directly related to his job related injury."

The Commission issued an Order on April 20, 1993, finding that Mrs. Ralph, although an eligible plaintiff, was not entitled to any permanent partial disability benefits because claimant had not reached maximum medical improvement prior to his death. Mrs. Ralph appealed the Commission's finding to the Circuit Court for Montgomery County, naming as defendants her husband's employer, Sears Roebuck & Co., and their insurance carrier, Allstate Insurance Co.

Cross-motions for summary judgment were filed by both sides, and oral argument was heard on October 13, 1993. In Mrs. Ralph's motion, she asked the court to find that Mr. Ralph had, as a matter of law, reached maximum medical improvement prior to his death. This motion was denied, the court finding that there was a genuine dispute of material fact as to whether Mr. Ralph had reached maximum medical improvement. The judge granted appellees' motion for summary judgment, however, holding that as a matter of law, there could not have been enough evidence for a decision to be made as to industrial loss of use.

Mrs. Ralph filed a Motion to Alter or Amend Judgment, arguing that a determination of the claimant's industrial loss of use could be made based upon the undisputed medical facts in the record and, at minimum, the various medical records in evidence on the issue of claimant's ability to return to work were ambiguous, thereby creating a dispute as to a material fact whether Mr. Ralph could have ever returned to work. This motion was denied on November 26, 1993, and the decision granting appellees' cross-motion for summary judgment was affirmed. This appeal followed.

Workers' Compensation Law and Procedure

A brief explanation of some basics of workers' compensation law is necessary in order to understand the critical issues in this case. Workers' Compensation benefits exist to mitigate the economic loss confronted by a worker who is injured on the job. R. Gilbert & R. Humphreys, Maryland Workers' Compensation Handbook, § 9.0 (1988). One type of benefit available is for disability, and disability benefits are granted to provide compensation for lost wages or loss of earning capacity that results from accidental injuries or occupational diseases. Id. at § 9.0-2. Disabilities are classified into several categories, including: temporary partial, ⁵ temporary total, ⁶ permanent partial, ⁷ and permanent total. ⁸ Id.

Temporary disability benefits are properly awarded until the point that an injured employee is restored as far as possible given the permanent character, if any, of his injuries. Alexander v. Montgomery County, 87 Md.App. 275, 285, 589 A.2d 563 (1991) (citing Jackson v. Bethlehem-Fairfield Shipyard, Inc., 185 Md. 335, 339, 44 A.2d 811 (1945)). Thereafter, permanent disability benefits may be awarded. In order to determine at what point permanent disability is allowed, the time of an injured employee's "maximum medical improvement" must be ascertained. Alexander, 87 Md.App. at 286, 589 A.2d 563. "Maximum medical...