Sterry v. Bethlehem Steel Corp.

WILNER, Judge,

dissenting.

I dissent. I do not believe that the recent decisions of the Court of Appeals in Young v. Hartford Accident and Indem. Co., 303 Md. 182, 492 A.2d 1270 (1984) and Gallagher v. Bituminous Fire and Mar. Ins. Co., et al., 303 Md. 201, 492 A.2d 1280 (1985) require the result reached by the panel majority in this case; nor do I believe that it is a wise *190result, or one in keeping with the purpose of the Workers’ Compensation law.

Appellant1 has alleged, in essence, the following. On September 4, 1970, he suffered an accidental injury to his back arising out of and in the course of his employment. He made claim for workers’ compensation and received awards for temporary total and for permanent partial disability. Pursuant to its obligation under Md.Code, art. 101, § 37(a) and the initial award of the Commission,2 Bethlehem provided continuing medical treatment to appellant for his work-related back injury.

That treatment consisted primarily of narcotic drugs designed to relieve appellant’s constant pain, and it eventually led to appellant’s becoming addicted to one or more of the medications. Appellant makes two basic complaints with respect to this treatment: (1) it was inappropriate and omitted other medical and surgical procedures that, in 1978 and 1979 were suggested by another physician consulted by appellant, and (2) it was intentionally designed to enable appellant to continue working and thus to preclude his seeking additional workers’ compensation benefits. Insistence upon this inappropriate treatment and failure to provide proper treatment resulted not only in the addiction but a worsening of the initial back problem, all to the point that appellant is now permanently and totally disabled.

Effectively, appellant has charged Bethlehem, through its physicians, with medical malpractice, pure and simple. Had *191he used the word “negligent” in describing what occurred, his right to pursue this action would clearly have been barred. Nazario v. Washington Adv. Hosp., 45 Md.App. 243, 246, 412 A.2d 1271 (1980); Young v. Hartford Accident and Indemnity Company, supra, 303 Md. at p. 192, 492 A.2d 1270. Professor Larson notes (1 Larson’s Workmen’s Compensation Law, § 13.21):

“It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant’s condition, or death, resulting from ... pain killers____ Fault
on the part of the physician, such as faulty diagnosis, improper administration of anesthesia, or a slip of the surgeon’s knife, even if it might amount to actionable tortiousness, does not break the chain of causation. Indeed, in some of the cases in the present category, the compensability of the aggravation due to treatment is adduced to support holdings that the employer or physician cannot be sued in tort because of the exclusiveness of the compensation remedy.”

This rule, as Larson observes later in § 13.21, has been applied even to the point that “[sjeveral cases have held that, where drugs used in the treatment of a compensable injury led to narcotics addiction or alcoholism, the ensuing consequences were compensable.” See cases cited in footnote 92 to § 13.21.

The relevant point is that the second injury, stemming from the treatment, is regarded as causally related to the initial injury for which the treatment was provided. It is for that reason that the second injury is not only considered compensable but that compensation benefits are held to be the exclusive remedy.

Appellant seeks to escape this “universally held” principle (Nazario, supra, 45 Md.App. at 246, 412 A.2d 1271 by eschewing the word “negligent” and averring instead that Bethlehem’s malpractice was “intentional.” It was done, he says, “solely in order to narcotize Plaintiff’s pain and other *192symptoms so that Plaintiff would perform and function in his duties as a millwright,” or, in another part of his amended declaration, “to cause and induce Plaintiff to perform and function in his work duties as a millwright in spite of a progressively deteriorating, multiple disc pathology and to deprive Plaintiff of his entitlements and benefits under the Workmen’s Compensation Law____”

Section 44 of art. 101, upon which appellant’s action is based, provides, in relevant part, that “[i]f injury ... results to a workman from the deliberate intention of his employer to produce such injury ... the employee ... shall have the privilege either to take under this article or have cause of action against such employer, as if this article had not been passed.” (Emphasis added). One must look carefully at the wording of this statute. To escape the bar of exclusivity provided by § 15 of art. 101, a plaintiff must allege and show more than merely an intentional act, more even than that his claimed injury resulted from an intentional act. The plaintiff must allege and prove that the employer’s act (or omission) was deliberately intended to produce the particular injury that, in fact, occurred. It is a precise and direct nexus that is required. That is what the words “such injury” means to me.

In Young, the plaintiff was assaulted while at work, and, as a result suffered both physical and emotional trauma. She became deeply in need of psychotherapy, which the employer’s compensation insurer refused to pay for (though ordered to do so by the Commission) unless she underwent an evaluation by the insurer’s physician. The company was warned that the plaintiff would likely attempt suicide if forced to undergo the evaluation; it nevertheless insisted, and the plaintiff, as predicted, made such an attempt. She sued the insurer for negligence in insisting upon the examination (Count I) and for intentional infliction of emotional distress (Count II).

The Court rejected Count I as being within the exclusive purview of the Worker’s Compensation Act. The allega*193tions, it said (303 Md. at p. 193, 492 A.2d 1270), “set forth an unbroken chain of proximate causation which continues from the emotional trauma suffered in the assault arising out of and in the course of Young’s employment on to and through the attempted suicide. Under Young’s pleading the injuries suffered in the suicide attempt are an aggravation of the work-related injury.”

Count II stood on a different basis. There, she alleged not only an awareness by the insurer that a further examination would cause the plaintiff emotional distress, but that “the sole purpose of Doctor Henderson’s examination was to harass the Plaintiff into abandoning her claim, or into committing suicide.” That, the Court held, “escalates the level of intentional conduct” sufficiently to state a case of intentional infliction of emotional distress. The injury sued upon — the emotional distress — was, in other words, the very injury intended to be caused by the insurer. It was not the mere by-product of some other intentional act.

Therein, I think, lies the distinction. There is, buried within the eleven pages of Count I of appellant’s amended declaration, a very general averment that “all” of the “wanton, willful and intentional acts and omissions” of Bethlehem and its doctors were “committed with knowledge of the substantial certainty that the drug addiction and the other permanently debilitating injuries complained of herein would result in total drug dependency and permanent and total physical disablement and with the intent to inflict these injuries upon Plaintiff.” In contrast, the more specific allegations, repeated at least twice in Count I, are to the effect that the intent was not so much to turn appellant into a drug addict or to cause him to become disabled, but rather to keep him at work. That, indeed, seems to be the real thrust of his complaint. To the extent of any conflict or ambiguity in the matter, it must, as the Young Court observed, (p. 192, 492 A.2d 1270) be resolved against the pleader.

*194We are left, then, with this. In the discharge of its duties under § 37(a), Bethlehem, through its agents, allegedly prescribed a wholly inappropriate course of treatment, intending thereby to keep appellant working. As a result of this intentional course of action, appellant suffered an aggravation of his work-related injury and also became a drug addict. Both injuries, in my judgment, are compensable, and exclusively so, under art. 101. I would therefore affirm the judgment entered below.

. For the sake of convenience, I shall use the singular "appellant” to refer to Mr. Sterry, recognizing that his wife joined in the action and is also an appellant.

. Section 37(a) provides, in relevant part, that "[i]n addition to the compensation provided for herein the employer shall promptly provide for an injured employee, for such period as the nature of the injury may require, such medical ... treatment ... as may be required by the Commission____" In the initial award of temporary total disability entered August 30, 1971, Bethlehem was directed to “[plromptly provide for said claimant such medical treatment and other necessary medical services as provided by [§ 37]."