Belcher v. T. Rowe Price Foundation, Inc.

RODOWSKY, Judge,

concurring in which McAULIFFE and CHASANOW, JJ. join

I join in the Court’s judgment, but not in the opinion, the rationale of which is, in my view, so expansive as to be legally incorrect.

*747The late Richard P. Gilbert, formerly Chief Judge of the Court of Special Appeals, and Robert L. Humphreys, Jr., in Maryland Workers’ Compensation Handbook (1988), have synthesized a rule from the Maryland cases that should be applied here. At § 5.2, “Personal Injury,” those authors state:

“A review of case law shows that a compensable injury may be found whenever an accidental physiological change is found to have arisen out of and in the course of employment. There is no statutory nor decisional requirement that the injury arise concurrent to or immediately after the accident.
“The absence of a physiological change or physical harm or damage should preclude a finding that an injury occurred. For this reason, emotional or mental disorders are not properly classified as accidental injuries unless they arise from an accidental event and include a physiological component.”

Id. at 85-86 (footnotes omitted).

In the instant matter, the accidental event requirement of this rule is dramatically satisfied. The requirement for a physiological change is also satisfied, at least to the extent that it was satisfied in Sargent v. Board of Educ. of Baltimore County, 49 Md.App. 577, 433 A.2d 1209 (1981). Sargent involved a building custodian who was required to enter a boiler to clean it. “She blacked out for several hours, which is clearly a physiological reaction, and after-wards, was temporarily unable to maintain the composure necessary to continue her work.” Id. at 584-85, 433 A.2d at 1213. The Commission awarded compensation, making “implicit in its decision that [the claimant] did suffer a physical change in response to her claustrophobic reaction to entering the boiler.” Id. at 584, 433 A.2d at 1213. The Court of Special Appeals concluded “that there was sufficient evidence to support [the claimant’s] contention that she suffered a physiological injury.” Id. Thus, the Sargent court, after having found error in a circuit court’s conclusion that there was no accident, also rejected an alternate ground for *748sustaining the circuit court’s judgment by holding that the evidence of personal injury was sufficient.

In the instant matter the circuit court’s ruling in favor of the employer is on summary judgment. The circuit court distinguished Sargent on the ground that the claimant here did not black out. There is, however, sufficient evidence to generate a factual issue that Belcher sustained physiological injury as the result of the accident. It could be found that, as a result of the accident, she suffered amnesia for several hours, was involuntarily shaking, became quite cold and was in shock, and that she suffers chest and shoulder pains, headaches, panic attacks, sleeplessness and nightmares. I would hold that this evidence generates a jury issue on physiological change. Certainly, Belcher’s claim is more demonstrable than is a claim based on complaints of pain in the low back, allegedly resulting from an unusual, twisting motion at work, which can be compensable, if believed, even though the complaints cannot be objectively corroborated.

On the foregoing analysis, the instant matter is not a case in which there is “an injury solely to one’s mind,” unaccompanied by physical harm. 329 Md. 709, 721, 621 A.2d 872, 878 (1993). Consequently, there is no need to attempt to condense into a single phrase the body of Maryland tort law bearing on damages for emotional distress (said to be “a standard permitting recovery for damages for trauma resulting from purely emotional distress that can be objectively determined”). Id. at 735, 621 A.2d at 885. Whether or not the foregoing statement accurately condenses Maryland tort law, it should not be imported into the Workers’ Compensation Act (the Act).

The expansive rationale of the majority opinion takes a state of facts which, under the Sargent analysis, presents a “physical-mental claim,” and resolves it by recognizing a “mental-mental claim” as a compensable claim. “Physical-mental claims involve a physical injury which leads to a mental disability; for example, a conversion neurosis following a traumatic injury.” D. DeCarlo, Workplace Stress: *749Trends, Outlook and Perspectives 258 (Am.Ins.Ass’n.1987). “Mental-mental claims refer to mental stress which results in a mental disability; for example, a nervous breakdown brought on by job harassment or termination.” Id.

The majority erects a “caution”—the “ ‘mental injury must be precipitated by an accident.’ ” 329 Md. at 740, 621 A.2d at 887 (quoting Sparks v. Tulane Medical Ctr. Hosp. & Clinic, 546 So.2d 138, 147 (La.1989)). What the majority apparently considers to be an appropriately compensable mental-mental claim, and what the majority considers to be the appropriate scope of the accident requirement, are illustrated in the favorably cited Sparks decision.

The claimant was hired by the employer hospital in 1980. She worked for four years in distribution of medical supplies, was promoted to regular work-week manager of the distribution center in 1984, and stopped work in April 1987. Relatively early in her employment, she had complained to her supervisor about co-workers smoking marijuana, and she had cautioned a co-worker about possible drug possession. From time to time property was stolen from the storeroom, including some belonging to the claimant, and there were acts of vandalism, some of which might have been directed at the claimant.

In 1987, at a staff meeting, the claimant expressed her opinion that a weekend crew, in the charge of another supervisor and responsible for restocking supply shelves, had been performing poorly. In protest of the criticism, two of the weekend employees refused to restock at all on the following weekend. When a senior supervisor decided that the protestors should be suspended for five days, the weekend supervisor told the claimant that “ ‘a lot of people around here want to kick your butt.’ ” Id. at 141.

A majority of the Supreme Court of Louisiana held that, as a matter of law, the communication of threats to the claimant was an accident, and that her fright and upset over the threats, which resulted in an emotional disability, *750was the injury. Id. at 148. “The Louisiana legislature reacted quickly to the Sparks decision, passing amendments to the statute in agreement with the dissent’s reasoning.” M. Antonetti, Labor Law: Workers’ Compensation Statutes and the Recovery of Emotional Distress Damages in the Absence of Physical Injury, 1990 Ann.Surv. of Am.Law 671, 680 (footnote omitted) (Antonetti).

I disagree with the majority’s approval of “ ‘allowing the mental-mental claim [as] justified by both the goals of workers’ compensation laws and evidence regarding the nature of mental injuries.’ ” 329 Md. at 741, 621 A.2d at 888 (quoting Antonetti at 696). The legislative history of the recodification of the Maryland Workers’ Compensation Act makes plain to me the General Assembly’s intent that mental-mental claims should not be compensable. Further, the General Assembly’s ongoing interest in, and concern over, the costs of workers’ compensation dictate judicial restraint rather than an expansion of benefits by judicial fiat, based on the majority’s view of “ ‘the best social policy.’ ” Id. at 742, 621 A.2d at 888 (quoting Antonetti at 698).

The Act was recodified from former Art. 101 of the Md. Code to Title 9 of the Labor and Employment Article of the Code by Chapter 8 of the Acts of 1991. It was introduced as House Bill 1 on January 9, 1991, and referred to the Economic Matters Committee. As proposed by the staff of the Legislative Division of the Department of Legislative Reference (the Revisor), and as introduced, § 9-101(b) created a definitional term used throughout the Act—“accidental injury.” By letter of January 16, 1991, the chairperson of the Workers’ Compensation Committee of the Maryland Chamber of Commerce wrote to the Chairperson of the House Economic Matters Committee opposing this definition and urging that proposed Title 9 use the term, “accidental personal injury,” that had been used, albeit not uniformly, in. Art. 101. Although the Revisor’s Note to § 9-101, that was included in House Bill 1, indicated that no substantive change was intended, the position taken by the *751Chamber of Commerce was not devoid of merit. We have recently pointed out, speaking through Judge Eldridge, that “personal injury ... normally connotes a physical injury to a victim.” United States v. Streidel, 329 Md. 533, 539, 620 A.2d 905, 909 (1993). The Chamber of Commerce in part pointed out that “[a] letter from the Legislative Analyst assigned to the Article Review Committee concedes that there is a potential problem with the proposed new definition of accidental injury if the Maryland Court of Appeals were to interpret the term ‘accidental injury’ to include other than physical injuries.”

Companion legislation to the proposed new Labor and Employment Article was House Bill 692, prepared to correct throughout the Code cross-references that would be rendered obsolete by the new Labor and Employment Article. House Bill 692, introduced on February 1, 1991, also was referred to the House Economic Matters Committee. That committee amended House Bill 692 by inserting a new § 5 to the bill, consisting of eighteen printed pages. 1991 Md. Laws 1170-87. The amendments changed the Revisor’s definitional term “accidental injury” to “accidental personal injury” and inserted that term throughout proposed Title 9. House Bills 1 and 692 were reported favorably by the House Committee on March 1, 1991; both were passed by the House on March 6, 1991; both were introduced into the Senate on March 7, 1991; and both were enacted. House Bill 1 was enacted on March 21 while House Bill 692 was enacted on March 22 as Chapter 21 of the Acts of 1991.

In the Maryland Code the combined effect of both bills appears under the Revisor’s Note to § 9-101 that has remained unchanged from its introductory form in House Bill 1. But the General Assembly did not agree with the Revisor that there was no difference between “accidental injury” and “accidental personal injury.” We should not consider that the General Assembly engaged in a useless act when it caused amendments to be made throughout the Act. Clearly the general purpose of the amendments was *752to prevent a judicial interpretation of “accidental injury” that included “other than physical injuries.”

At the time of the legislative amendments, however, the Court of Special Appeals in Sargent had already interpreted “accidental personal injury” to include physiological changes. Thus, while I agree that Belcher’s claim is not barred, I also believe that this Court should respect the intent of the General Assembly and refrain from covering the purely mental-mental claim with the mantle of “accidental personal injury.”

Further, recent and ongoing executive and legislative economic studies that seek to balance benefit to workers against cost to employers should dictate against this Court’s economically uninformed disruption of that balance by expanding the Act to include mental-mental claims. On December 31, 1985, the Maryland Department of Economic and Community Development (DECD) issued a report that compared Maryland’s workers’ compensation costs in fifty-one occupational classes with those of twenty-nine other states. DECD, Workers’ Compensation in Maryland 34 (1985) (the DECD Report). It found that Maryland “ranked in the high-cost third of the 30 states with respect to Standard Earned Premium (SEP), indemnity losses, and total losses.”1 Id. at 73. The Report also found that “Maryland ... ranked in the high-cost third in all categories under permanent partial injuries, including indemnity losses, medical losses, total losses and claim count.” Id. Identified as possible areas of reform were permanent partial awards, medical cost containment, use of standardized medical guides, competitive rating—modified file-and-use, data collection and reporting, and safety in the workplace. Id. at 77-84.

*753On December 31, 1985, another group, the Ad-Hoc Working Group on Workers’ Compensation (the Working Group), issued a report, also entitled, “Workers’ Compensation in Maryland.” Working Group, Workers’ Compensation in Maryland (1985). The Working Group was comprised of members from organized labor, the business community, and “researchers familiar with the availability and quality of data on Maryland’s workers’ compensation experience.” Id. at 3. The Working Group’s purpose was “to propose cost effective initiatives for Maryland’s workers’ compensation system.” Id. at 1. In its report, the Working Group made numerous recommendations, several of which were the same as those made in the DECD Report.

By Executive Order 01.01.1986.11, on June 5, 1986, Governor Hughes established the Governor’s Commission to Study the Worker’s Compensation System (the Commission). 13 Md.Reg. 1575 (July 3, 1986). The impetus for the Governor’s Executive Order came from the DECD Report and the Working Group’s report. See id. The Executive Order charged the Commission with reviewing the laws, procedures and other matters relating to “the cost of workers’ compensation and the efficient provision of adequate benefits to Maryland workers,” and with recommending changes. Id.

The Commission replaced the Governor’s Commission on Workmen’s Compensation Laws. That commission “focused more on the issues of efficiency and fairness in the implementation of the worker’s compensation law, and did not have the specific cost reduction mandate of the new Commission.” Department of Fiscal Services, Staff Report on Worker’s Compensation in Maryland: Briefing Paper for the 1987 General Assembly 10 (Jan. 19, 1987).

The Commission reported in January 1987. Governor’s Commission to Study the Workers’ Compensation System, Report of the Governor’s Commission to Study the Workers’ Compensation System (1987) (the Commission Report). The Executive Summary to the Commission Report stated:

*754“The workers’ compensation system is a major social program in Maryland, providing Maryland’s two million workers with remedies for work-related injuries and illnesses. Previous research studies have clearly established that the costs of the present workers’ compensation system to Maryland employers are significantly increasing, and that Maryland is an expensive workers’ compensation state. Comprehensive reform of Maryland’s workers’ compensation program is critical to achieving a modern, effective system that is both equitable and cost effective.”

Id. at 1.

During its 1987 session, the General Assembly made substantial revisions to the Act. See Acts of 1987, chs. 590, 591. Among other things, Chapter 590 established a Workers’ Compensation Benefit and Insurance Oversight Committee (the Oversight Committee). Acts of 1987, ch. 590, § 3. The Oversight Committee was charged with examining and evaluating “the condition of the workers’ compensation benefit and insurance structure in Maryland” and the effects of the 1987 legislation. Id. The Oversight Committee must report by December 31 of each year to the Governor and the General Assembly. Id. It has done so. See Oversight Committee, Reports of the 1889, 1990, 1991, and 1992 Interim to the Governor and the Maryland General Assembly.

None of these studies expressly addresses the question of mental-mental claims, apparently because they have never been considered to be included in the Act and because there is no significant impetus to include them. Whether the Act should be expanded to include mental-mental claims requires an evaluation of costs and benefits to many interests that make up the economy of the entire State. It is, in my view, particularly inappropriate for this Court to decide that question in a case in which that issue need not be decided.

Judges McAULIFFE and CHASANOW have authorized me to state that they join in the views expressed in this concurring opinion.

. "Standard earned premium (SEP) is the total premium paid (or contracted to be paid) by employers in a given risk classification based on manual rates and experience rating at the beginning of the policy period. The SEP sometimes is identified as the gross premium because it is a gross estimate of employers' average cost of workers’ compensation insurance." DECD Report at 40.