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Phuonglan Ngo v. CVS Inc.

Court of Special Appeals of Maryland

September 25, 2013


Zarnoch, Graeff, Salmon, James P. (Retired, Specially Assigned), JJ.



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 ...

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