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.
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
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.
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
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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*393 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.
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
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
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,
Section 9-627 of the Labor & Employment Article classifies the body into two categories for purposes of award
In order to award compensation in claims of “other cases” injuries, the Workers’ Compensation Commission must determine the percentage of industrial loss of use of the employee’s body that was attributable to the injury.
[t]he difference between wages earned by a claimant at the time of an accident and the post-injury earnings of the injured employee is one of several relevant factors which a trier of fact may consider in deciding the amount of loss of industrial use of an employee who has suffered permanent partial disability.
In addition to post-injury earnings, other relevant factors for evaluating disability in “other cases,” and ascertaining an employee’s industrial loss of use of the body include:
1. physicians’ opinions on medical disability;
2. the claimant’s occupation;
3. the relationship between the physical disability caused by the injury and the activities, duties and requirements of the claimant’s occupation;
4. the claimant’s occupational experience and work history;
5. the claimant’s level of training ...
*397 6. the claimant’s age....
Gilbert & Humphreys, § 7.4.
In the case sub judice, Mr. Ralph suffered a lower back injury after falling during the course of his employment. Lower back injuries are considered “other cases” for purposes of workers’ compensation. Mr. Ralph’s employer/insurer voluntarily paid him temporary total benefits from the time of his accident up until the time of his death. Mrs. Ralph’s claim which she appealed was for permanent partial disability payments, from the time she asserts Mr. Ralph reached maximum medical improvement until the time of his death.
Discussion
Appellant first contends that the trial court erred in granting appellees’ summary judgment motion because numerous disputes of material fact existed. First, there was a dispute as to whether Mr. Ralph had reached maximum medical improvement prior to his death. Second, there was a dispute as to whether Mr. Ralph could have returned to work following his injury. Third, a dispute existed over whether Mrs. Ralph could provide the evidence necessary to support a claim for industrial loss of use. Because of these genuine disputes of material fact, appellant asserts that appellees’ summary judgment motion was improperly granted.
Appellees concede that there was a genuine dispute as to whether Mr. Ralph had reached maximum medical improvement prior to his death, and explain that this is why Mrs. Ralph’s summary judgment motion was not granted. Appellees argue that their motion, however, was properly granted because the judge found that it would be impossible for Mrs. Ralph to produce “the necessary evidence to make a determination on the [cjlaimant’s industrial loss of use,” thus, there was no genuine dispute of a material fact.
The standard by which this Court must review the granting of a summary judgment motion is first, to determine whether there were any genuine disputes of material fact and if not, then to determine whether the moving party was
The summary judgment motion granted by the lower court was on the issue of whether Mrs. Ralph could produce enough evidence to prove industrial loss of use, even assuming arguendo that Mr. Ralph had reached maximum medical improvement prior to his death. Appellant points out that it appears the lower court did one of two things in granting appellees’ summary judgment motion; either the judge weighed the evidence before her and found that there was not enough to prove Mrs. Ralph’s claim, or, she made a legal decision that posthumous permanent disability ratings were inadmissible.
It is erroneous for the lower court judge to weigh the evidence before her to make a determination that involves a genuine dispute of material fact. See Strickler Engineering Corp. v. Seminar, Inc.,
Because it appears from the record that the lower court judge did not make a ruling on the credibility of the evidence, we must address appellant’s second contention, that the judge’s ruling was based on her belief that because claimant had passed away prior to any adjudication of his benefits, Mrs. Ralph could not produce the required evidence to support her claim. The judge explained:
The respondent also has filed a Motion for Summary Judgment based on the legal position that on the circumstances and facts of this record there could not be • before the Commission, because of what happened and how it hap*399 pened and the timing and the fact that hearings were never held, there cannot be the necessary evidence presented by the claimant before a commission to show industrial loss of use as it relates to the back injury because what would have to be done was not able to be done prior to Mr. Ralph’s death, and both claimant and respondent cite to the same cases, the Richardson case and the Thomas case, as being supportive of each position.
I have reviewed those cases, and I think the rulings in those cases support the position of the employer in this particular case, this being very fact-specific just to the circumstances which arose and the timing of how it arose and what had occurred before Mr. Ralph’s death, and I am going to make a finding and a ruling that as a matter of law, in this case I don’t see how there could be presented the necessary evidence for a decision to be made as to industrial loss of use, which I think is required in this case before there could have been a determination made that the claimant was seeking, and therefore, I am going to grant the respondent employer’s Motion for Summary Judgment in the case.
Appellees argue that since the judge clearly stated that she felt that their position was supported by the case law, she accepted the argument in their cross-motion for summary judgment, specifically that: (1) posthumous medical opinions on maximum medical improvement and permanent partial impairment cannot be used to support a finding of industrial loss of use of the body; (2) there was no prior testimony by claimant or opportunity for appellee to cross-examine him prior to his death; and (3) there was no evidence at all of the claimant’s loss of earning capacity. We shall address each issue separately, explaining why we disagree with appellees’ argument and the granting of their summary judgment motion.
Posthumous Medical Opinions
In the case sub judice, Dr. Shah formally rated the permanency of Mr. Ralph’s injuries subsequent to his death.
Both parties rely on State Dept. of Motor Vehicles v. Richardson,
The parties disagree in their understanding of the Richardson case, appellant arguing that it stands for the proposition
The Court of Appeals began in Richardson by explaining that Maryland law would follow the line of cases in which workers’ compensation awards were sustained when the claimant had filed a claim but died from non-compensable causes before a hearing could be held. Richardson,
There were several differences between the evidence before the Richardson court and that in the case sub judice. First, the extent of Mr. Richardson’s disability was rated by doctors prior to his death. Id. at 542,
The Court of Appeals, in Richardson, determined that there was enough evidence under the circumstances of the case from which the Commission could make an intelligent award. They listed all of the evidence that was available, making no statement as to the relative importance of the evidence, and decided that, as a whole, it was enough for a decision to be made.
There are no cases dealing specifically with the admissibility of posthumous disability ratings. Several jurisdictions, however, have awarded posthumous benefits in cases where an action was not initiated by claimant prior to death. See, e.g., Associated Town “n” Country Builders, Inc. v. Workmen’s Compensation Appeal Board,
In Associated,
In Snyder Constr.,
Appellant cites Adzima v. UAC/Norden Division,
We hold that posthumous disability ratings may be used as evidence in workers’ compensation cases. Therefore, in this case, summary judgment could have been properly granted only if there were other crucial pieces of evidence that Mrs. Ralph could not present.
No Prior Testimony or Opportunity for Cross-Examination
Appellees also contend that, because Mr. Ralph did not testify prior to his death, they were deprived of the opportunity to cross-examine him and the factfinder would be unable to review prior evidence or testimony. This, appellees assert, distinguishes the case sub judice from Richard,son. In Richardson,
[t]he appellant also contended] that no award could be made ... since there was ‘no interrogation of the claimant, no cross-examination, no observation of him by the Commission, in truth, no way to fairly and accurately evaluate his disability.’
[t]he claimant, prior to his death, had filed a claim describing his injuries and disability, and he had been examined*406 and the extent of his disability rated by doctors; hospital records were available, and the Commission had the benefit of evidence introduced at the prior hearing to determine temporary total disability from the same accident, at which time there was opportunity for cross-examination of the claimant.
It is true that in the case sub judice the Commission did not have the benefit of evidence from a prior hearing because claimant never had or required a hearing to determine his temporary benefits. Appellees had voluntarily paid claimant’s temporary benefits, obviating the need for a prior hearing. But again, Richardson does not mandate that all of the evidence it had before it in that case must necessarily be available in order to support a claim. Here, it is clearly impossible for Mrs. Ralph to produce evidence from a prior hearing when no such hearing was had, nor was it even necessary. As “[t]he dependents of the deceased claimant should not be penalized on the basis of whether or not the Commission has been able to hold a hearing and make an award before the claimant’s death,” Id. at 540-41,
No Evidence of Loss of Earning Capacity
Appellees argue additionally that Mrs. Ralph can produce no evidence of a loss of earning capacity due to Mr. Ralph’s injuries, thus, no finding of industrial loss of use can be made, because “[a] finding of industrial loss under ... [other cases] is equivalent to a finding of loss of earning capacity.” Giant Food, Inc. v. Coffey,
The difference between “scheduled members” and “other cases” injuries is that for “scheduled member” parts of the body, the General Assembly has ascribed a specific value and certain guidelines and minimum compensation levels. Gilbert & Humphreys, § 7.3. For “other cases,” a claimant’s disability is evaluated in accordance with the relationship between the disability and the worker’s loss of use of the body. Id. at § 7.4. Thus, the employee’s industrial loss of use of the body must be ascertained by weighing certain factors. Post-injury wages are one factor that may be considered when benefits for “other cases” injuries are sought. If Mrs. Ralph’s evidence is to be believed, Mr. Ralph would have had no post-injury wages at all, because Dr. Shah found a one-hundred percent disability due to the work-related injury and opined that claimant would never have returned to work.
Appellees contend that the strongest evidence of an effect on earning capacity is the comparison of pre-injury wages to post-injury wages. (Citing Hall,
In Hall, the court said that the difference between pre- and post-injury earnings “is one of several relevant factors which a trier of fact may consider in deciding the amount of loss of industrial use of an employee who has suffered permanent partial disability.”
Construing all inferences in appellant’s favor, we hold that there is a genuine dispute as to material facts concerning the evidence to support the claim for permanent disability benefits. Thus, the granting of appellees’ summary judgment motion was improper.
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION; APPELLEES TO PAY THE COSTS.
Notes
. Claimant died of colon cancer prior to having a hearing on the nature and extent of permanent disability.
. These benefits were paid from March 1, 1991 until claimant’s death on November 9, 1991.
. "Work hardening” is defined as
[a] series of conditioning exercises that an injured worker performs in a rehabilitation program. These are designed to simulate the functional tasks encountered on the job to which the individual will return.
Taber's Cyclopedia Medical Dictionary 2165 (17th ed. 1993).
. It is important to note that this rating of claimant’s disability occurred after claimant’s death, not before.
. Temporary partial disability is less than temporary total disability. Gilbert & Humphreys, § 9.2. It results when an accidental injury befalls an employee, precluding the employee from working full-time at his or her job or forcing the employee to work at a different job for a lower wage than he or she earned before the injury. Id.
. Temporary total disability benefits are available to employees during the healing period when the employee is completely disabled and unable to work as a result of the injury. Gilbert & Humphreys, § 9.3. "Back injuries present a typical injury which results in temporary total disability.” Id.
. Permanent partial disability is considered “partial in character but permanent in quality.” Gilbert & Humphreys, § 9.4. There are three classifications of permanent partial disability, two which will be discussed infra text. These include: "specific injuries,” "other cases,” and "serious disability.” Id.
. Permanent total disability is the incapacity of the employee to do any work of any kind for which a reasonable market exists. Gilbert & Humphreys, § 9.5.
. Other cases.—(1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee’s body was impaired as a result of the accidental personal injury or occupational disease.
Md.Code Ann., Labor & Empl. § 9-627(k).
. Article 101 was repealed by Acts 1991, ch. 9, § 1, effective October 1, 1991. The Labor & Employment Article of the Annotated Code codified the pertinent parts of this article.
. Even if that was the law, here there was an "informal” rating prior to death. See note 11, supra.