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Sears, Roebuck and Company, Inc. et al. v. Anne M. Ralph, No. 20, September Term, 1995. [WorkersU Compensation - Back Injury - Death From Unrelated Causes Worker Had Been Treated For Months By Physician Who Opines MMI Had Been Reached Several Months Before Death. Held: No Per Se

Prohibition Against Post-Death Evaluation Of Medical Impairment.]

Circuit Court for Montgomery County Case #105651

IN THE COURT OF APPEALS OF MARYLAND No. 20 September Term, 1995 ____________________________________

SEARS, ROEBUCK AND COMPANY, INC. et al. v.

ANNE M. RALPH

____________________________________ Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ Opinion by Rodowsky, J. ____________________________________ Filed:

In this workersU compensation case the claim is for permanent total disability allegedly resulting from a low back injury

suffered by a claimant who died while receiving temporary total disability compensation and who, months after his death, was rated for permanency by his former treating physician. The employer and

insurer contend that a posthumous rating is incompetent evidence, per se, in "other cases" determinations, and, in any event, that the medical history of this claimant is legally insufficient to support an "other cases" determination. The WorkersU Compensation

Commission (the Commission) denied the claim, and, by summary judgment, the Circuit Court for Montgomery County agreed. Court of Special Appeals reversed. The

Ralph v. Sears, Roebuck & Co., On the petition of the For the

102 Md. App. 387, 649 A.2d 1179 (1994).

employer and insurer, we issued the writ of certiorari.

reasons explained below, we affirm the Court of Special Appeals. Calvin T. Ralph, Sr. (Claimant), now deceased, was the husband of the respondent, Anne M. Ralph (Mrs. Ralph). employed to service and repair appliances by Claimant was one of the

petitioners, Sears, Roebuck and Company, Inc., whose compensation carrier is the petitioner, Allstate Insurance Company. The

employer and insurer are hereinafter collectively referred to as "Sears." On February 20, 1991, Claimant, then age 60, slipped and

fell on wet leaves on patio steps at a customerUs house while going to inspect a dryer vent. Thereafter Sears paid He injured his lower back in the fall. Claimant temporary total disability

-2compensation until his death of unrelated causes on November 9, 1991. Complaining of low back pain, with pain radiating to both hips, Claimant saw Dr. Harikant C. Shah on March 1, 1991. X-rays

revealed disc narrowing, osteophyte formation, and degenerative changes. Dr. Shah prescribed conservative treatment. Following a It revealed The

visit on March 15 Dr. Shah ordered a CT scan.

"[s]evere degenerative disc and bony disease at all levels.

regions of most severe disease with probable nerve root impingement are L2-3 on the right, L3-4 on the right, and L4-5 on the left." Thereafter Dr. Shah saw Claimant on five occasions between April 8 and May 31. During that period the form, "Notice of EmployeeUs

Claim," was filed with the Commission by or on behalf of Claimant. Dr. Shah also referred Claimant to Dr. Nathan C. Moskowitz for a neurosurgical Moskowitz evaluation that that, was performed order to on June 3. Dr. define

concluded

"[i]n

adequately

[ClaimantUs] nerve roots and come up with a rational therapeutic decision, it will be necessary for him to have a myelogram followed by a CT scan." The next day the Claimant was examined and evaluated at the request of Sears by Dr. Herbert H. Joseph. "residual low back strain." Dr. Joseph diagnosed

He found "[t]he straight leg raising He saw no

test and neurologic exam [to be] completely negative."

reason for surgical intervention or for further diagnostic studies. He recommended "a short course of mobilization ... as well as some

-3work hardening." He anticipated "improvement, with return to work

on a light duty status within two to four weeks of instituting treatment." In light of Dr. JosephUs report, Sears would not agree

to pay for a myelogram. Thereafter Claimant was seen by Dr. Shah on June 10 and 21. Of significance to the instant claim is Dr. ShahUs note of the latter visit. It reads as follows:

"PatientUs lumbar spine pain continues. Patient has increased left leg pain. Straight leg raising test is positive on the left side. Patient walks with a limp and he has difficulty walking on the toes. Patient is totally disabled for any gainful employment; moist heat, hot showers, rest at home. Reevaluation in 2 weeks." That same day Dr. Shah wrote to Sears saying in part: "I do not feel that [Claimant] is a candidate for any work-hardening program, since he will not be able to tolerate bending and sitting or standing at this time. Whether he will 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." Claimant saw Dr. Shah on July 8, 17, and 29 and on August 7 and 30. recorded On all occasions when Dr. Shah saw Claimant, Dr. Shah notes of ClaimantUs complaints and of Dr. ShahUs

observations and recommendations. In late August 1991 Claimant was diagnosed with colon cancer that had metasticized to the liver. September and died in November 1991. He underwent surgery in

-4Mrs. Ralph continued the claim pursuant to Md. Code (1991),

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