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Kelly v. Baltimore County1/31/2005
s provided by Md. Code (1957, 2002 Repl. Vol.), Labor and Employment Article ("L.E."), § 9-660 through § 9-664, and § 9-689.
On April 14, 2003, the County filed issues to be heard by the Commission, questioning whether Kelly's surgery was causally related to his accident of October 24, 2002. A hearing was held by the Commission on July 31, 2003.
At the Commission hearing, the County argued that the back injury that led to Kelly's surgery was actually a non-work-related injury suffered in December 2001 while playing basketball. Evidence was presented in the form of medical reports, which indicated Kelly had been receiving treatment since the December 2001 incident for a disc herniation in the same area of his lower back where his 2003 surgery had been performed.
The County submitted a letter report from Dr. Stephen R. Matz, a physician hired by the County to conduct an "independent medical evaluation" of Kelly. The County argued that it was Dr. Matz's opinion that Kelly's back surgery was not causally connected to the employment-related motor vehicle accident, but instead resulted from his 2001 basketball injury. Additionally, the County submitted two letters concerning the surgery from Kelly's treating physician, Dr. Ira Fedder, which the County argued did not expressly connect the surgery with the injury Kelly suffered from the motor vehicle accident. The County argued that Dr. Fedder's omission of an opinion as to causation was significant.
The documentary evidence presented by the County reflected that Dr. Fedder had discussed back surgery with Kelly in September 2002 during the course of treatment for the December 2001 basketball injury. The documents further reflected that Dr. Fedder suggested that, before resorting to surgery, Kelly should first undergo a series of injections, known as selective nerve root block, to see if that procedure would eliminate his back pain.
Dr. Fedder referred Kelly to Dr. P. Bobbie Dey, who gave Kelly nerve root block injections on the following four dates: October 10, 2002, October 17, 2002, October 31, 2002, and November 7, 2002. Kelly testified at the Commission hearing that after the October 17, 2002 injection, he was doing well and was not going to receive the third injection. However, after the motor vehicle accident on October 24, 2002, Kelly's pain returned, and he decided to receive the third and fourth injections.
Dr. Dey's patient reports regarding Kelly were submitted at the Commission hearing. They corroborated that Kelly was experiencing pain when he visited her on October 31, 2002, one week after his involvement in the motor vehicle accident. Her report from that visit stated: " he patient was 100 percent improved. Recently, the patient had a side impact, work-related motor vehicle accident since which time the pain in his legs have returned. I recommend no streak duties as a police officer for the [next] 6 to 8 months."
Kelly submitted additional medical records at the Commission hearing regarding the 2001 back injury. He admitted that Dr. Fedder had discussed the possibility of surgery with him prior to the motor vehicle accident that occurred on October 24, 2002, but he asserted that his condition had improved substantially in response to the nerve root injections he received, and that he had ruled out surgery until the accident caused the pain to return. Kelly argued that, while the motor vehicle accident was not the original cause of his back pain, the accident aggravated the old injury and caused him to need surgery.
Kelly also testified that he did not miss any time from work as a result of the December 2001 basketball injury, except for two to three days
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